1. A Summary of Chief Justice Lorie Skjerven Gildea and Law Enforcement.

Chief Justice Lorie Skjerven Gildea, like every law enforcement officer in Minnesota, lives by her oath to uphold the Constitutional rights of every person . . . and by her commitment to keep society safe from lawbreakers.

She has ruled to keep our worst murderers in prison for life . . . not because they are the worst murderers . . . but because  their legal appeals are not in line with the laws written by our Legislators and defined by our courts.  See here.


For the same reasons, Chief Justice Lorie Skjerven Gildea has upheld the sentences for men who have murdered law enforcement officers.

• The murder of Sergeant Gerald Vick in St, Paul.  See here. 
• The murder of Officer James Sackett in St. Paul.  See here. 
• The murder of Officer Richard Walton in St. Paul.  See here.
• The murder of Officer Jerry Haaf in Minneapolis.  See here. .
• The murder of Officer Scott Patrick in Mendota Heights.  See here.
• The murder of Deputy Christopher Dewey in Mahnomen.  See here.
• The murder of John Liebenstein near Faribault.  See here.
• The murder of Officer Shawn Silvera near Lino Lakes.  See here. 
• The murder of Probation Officer Howard Porter in St. Paul.  See here.  

Chief Justice Lorie Skjerven Gildea also ruled twice that it was improper for Minneapolis to require Police Officers to purchase their own professional liability insurance.  See here.

Chief Justice Lorie Skjerven Gildea ruled that an MPD Officer should be given a hearing to determine if he had been the subject of age discrimination.  See here.

Chief Justice Lorie Skjerven Gildea ruled that firm prosecution should be imposed on a person who threatens on computer to kill law enforcement officers with a hand grenade.  See here.

Chief Justice Lorie Skjerven Gildea ruled to disbar a lawyer for lying to a police officer under specific grounds.  See x.

Chief Justice Lorie Skjerven Gildea ruled that a conviction for assaulting a law enforcement officer should be upheld when a convict lunged at a Deputy with a handgun.  See here.

Chief Justice Lorie Skjerven Gildea ruled that law enforcement officers should be given fair hearings in promotion proceedings.  See here.

Chief Justice Lorie Skjerven Gildea ruled that not all evidence on drug crime should be excluded from the St. Paul Crime Laboratory.  See here.

Chief Justice Lorie Skjerven Gildea ruled that "test refusal" should remain a crime.  That decision was upheld by the United States Supreme Court,  See here.

Chief Justice Lorie Skjerven Gildea ruled that the Minnesota version of the Fourth Amendment does not give broader restrictions than the federal version of the Fourth Amendment.  See here.

Chief Justice Lorie Skjerven Gildea ruled that reasonable standards should be set to evaluate applications to judges for warrants.  See here.

Chief Justice Lorie Skjerven Gildea ruled to preserve the personal immunity of most law enforcement officers from lawsuits in most traffic colisions.  See here.

Chief Justice Lorie Skjerven Gildea ruled that a law enforcement officer should be given a fair hearing if he claimed that he had been defamed by a superior officer.  See here.

Chief Justice Lorie Skjerven Gildea ruled that the law prohibiting fleeing from police on foot was constitutional.  See here.

Chief Justice Lorie Skjerven Gildea ruled that it is criminal to make false statements to police which defamed another police officer,  See here.

Chief Justice Lorie Skjerven Gildea ruled that only a qualified Peace Officer can exercise the full authority of a Licensed Peace Officer.  See here. ,

Chief Justice Lorie Skjerven Gildea ruled that assaulting five Law Enforcement Officers during an arrest can lead to a served sentence of over 10 years.  See here.

Chief Justice Lorie Skjerven Gildea upheld the dismissal of a complaint against a trial judge who ordered a defense counsel to apologize for insulting a police officer in open court.  See here.

Chief Justice Lorie Skjerven Gildea has issued over 1,000 rulings on police investigations and interrogations in criminal cases.  One favorite one is dismissing a murderer's claim that he did not get to cross-examine a declarant on her dying declaration to police.  You don't get to cross-examine a witness if you killed her.  See here.

2. Four Appeals on The murder of Sergeant Gerald Vick in St, Paul.

THE MURDER: St. Paul Sgt. Gerald Vick was a hero.  He won his first Medal of Valor for crashing through flames twice to save two toddlers from a burning home in 1990.  He won his second Medal of Valor in 1997 by saving a robbery victim and surviving a gun battle with the robber.  He won his third Medal of Valor for facing drug kingpin and gang enforcer Harold Jerome Evans during an undercover vice operation when Evans murdered him.

At 2:20 a.m. on May 6, 2005, Sergeant Gerald Vick was working undercover on a human trafficking case with his partner Sergeant Michael Strong at Erick's Bar on East Seventh Street in St, Paul.  When they emerged from the bar, they saw Harry Jerome Evans and another man confronting patrons as they emerged.  The officers told the men to move along and went to their cars.  When the two men confronted Sergeant Strong at his car, he chased them into an alley, where they were joined by Sergeant Vick, who was not wearing a vest because of the undercover assignment.  Evans shot Sergeant Vick several times.  Evans was caught seven hours later hiding on the porch of a house in the adjoining Dayton's Bluff neighborhood.  Evans had thrown the murder weapon with his fingerprints and DNA in the next yard.

Evans was convicted of first-degree murder of a peace officer for the 2005 murder of Sergeant Vick and sentence without the possibility of release.

Chief Justice Lorie Skjerven Gildea has denied Evans' appeals from his conviction and life sentence four times.

First, in 2008, the Minnesota Supreme Court rejected Evan's direct appeal.  See here.

     First, the Supreme Court rejected Evans' claim that the trial court has improperly contacted a juror to find out if he had made a racially-prejudiced comment.  The Supreme Court had directed the trial court to make such an inquiry after an unidentified caller made such an allegation.

     Second, the Supreme Court held that Evans' second claim was unfounded because he provided no proof that a juror had made a racially-prejudiced comment or that the trial court had seated a racially-prejudiced juror.

     Third, the Supreme Court rejected Evans' third claim that he was not given enough information about a witness' trip to the hospital on the night of the murder.  The Supreme Court noted that Evans' lawyer exercised a full opportunity to question the witness on the stand about the hospital visit.

    Fourth, the Supreme Court held that Evans need not have known or have had reason to know that Sergeant Vick was a peace officer to be found guilty under the law against murdering a peace officer.

     Fifth, the Supreme Court held that the trial judge did not err in declining to give a specific instruction about a witness as an accomplice to the crime because Evans' entire defense had been a claim that the accomplice had shot Sergeant Vick and that Evans had not done the shooting.

     Finally, the Supreme Court rejected Evans' complaint that he was prejudiced by evidence about Sergeant Vick's past heroism and three medals of valor.  The Supreme Court first noted that the trial judge had barred the direct introduction of this evidence.  Second the Supreme Court noted that the evidence was only introduced after Evans' lawyer had opened the door by claiming that the victim
was not on duty as a police officer when he was killed.  Third, the Supreme Court noted that the district court limited the State's introduction of such evidence so that it was not unduly prejudicial.

Second, in 2010, Chief Justice Lorie Skjerven Gildea wrote for the Supreme Court in rejecting Evans' first post-conviction appeal of his conviction and sentence.  See here.

     First, the Supreme Court rejected Evans' claim that his trial lawyer was ineffective because, even if such a claim was true, such a claim would have had to be raised on his first and direct appeal.

     Second, the Supreme Court rejected Evans's claim that his appellate lawyer had been ineffective in presenting the direct appeal.  The Supreme Court reviewed the lawyer's work and held it effective.

     Third, the Supreme Court rejected Evans' claim that a witness had recanted his testimony.  The Supreme Court held that Evans had not proved that a jury would have found differently if the witness had not offered the evidence which he allegedly recanted.

     Fourth, the Supreme Court denied a new trial for Evans on the basis of Evans' claim of newly-discovered.  The Supreme Court held that the evidence was known to Evans at the time of the original trial.

     Finally, the Supreme Court held that any error in denying petitioner's motion to compel discovery of a hearsay statement to a police officer was harmless.

Third, in 2015, the Supreme Court rejected Evans' second post-conviction appeal.  See here.

Many states do not allow a convict to have multiple appeals of the same conviction.  Minnesota does allow subsequent post-conviction appeals after a direct appeal.  However, by bot statute and court precedent, there are procedural limits and time limits on such appeals.

Here, Evans had filed a second post-conviction appeal nearly ten years after the murder of Sergeant Vick.  The district court held that this appeal was untimely, denied a hearing for Evans, and dismissed the appeal.

Evans asked the Supreme Court to review this dismissal.  The Supreme Court held that "the district court did not err when it concluded that appellant’s claims were untimely."


Fourth, in 2016, the Supreme Court upheld the trial court's order that Evans pay restitution of $7.500 to the Crime Victim Reparations Board as part of his original sentence.  See here.

In March, 2015, Evans moved for an amendment of sentence and reversal of the order to pay restitution,  The district court ruled that the amount had been authorized by law, the time limit had expired for challenging the restitution order, denied a hearing and dismissed the motion.

On those grounds, the Supreme Court upheld the district court and ordered Evans to pay the restitution for the murder of Sergeant Vick.

3. Two Appeals In The Murder of Officer James Sackett in St. Paul

THE CRIME:  On May 22, 1970, activists in St. Paul were trying to draw the attention of the national Black Panthers movement.  Constance Trimble placed a fake 911 call which drew St. Paul Officer James Sackett to a house, where sniper Ronald Lindsey Reed waited with conspirator Larry Clark to murder Officer Clark.

Trimble was acquitted of murder.  She did not name her conspirators for 35 years.  Clark agreed to plead guilty and served five years for his role.  Reed was convicted and sentence without the possibility of release.

Chief Justice Lorie Skjerven Gildea rejected two appeals by Reed.

First, in 2007, the Supreme Court rejected Reed's 13 claims on his direct appeal.  See here.

     First, the Supreme Court the Supreme Court held that the district court had original jurisdiction over a defendant who was 19 years old when he committed an offense in 1970.

     Second, the Supreme Court held that the district court did not commit reversible error when it instructed the jury that a defendant indicted for aiding and abetting and conspiring with a named individual could be convicted upon proof that he aided and abetted or conspired with any individual.

     Third, the Supreme Court held that the evidence presented was sufficient to support the defendant’s convictions for first-degree murder and conspiracy to commit first-degree murder.

     Fourth, the Supreme Court held that the district court’s failure to give an accomplice corroboration instruction sua sponte was not plain error.

     Fifth, the Supreme Court held that the district court’s failure to give an instruction sua sponte limiting the use of evidence of other bad acts was not plain error.

     Sixth, the Supreme Court held that the district court did not err by replaying an audio tape of a 911 phone call at the request of the jury.

     Seventh, the Supreme Court held that of the seven remaining claims that Reed filed without the support of a lawyer, none constituted reversible error.

Second, in 2010, the Supreme Court rejected his first post-conviction appeal.  See here.

     First, the Supreme Court rejected Reed's claim that he was denied his constitutional right to self-representation is barred by Knaffla because appellant argued the same issue on direct appeal.

     Second, the Supreme Court rejected that his 2005 trial for a 1970 murder was time-barred by the statute of limitations. 

     Third, the Supreme Court rejected Reed's claim that he should not have been tried for both murder and abetting murder because he claimed that the 35-year delay for charging the abetting crime was time-barred by the statute of limitations.  The Supreme Court noted that there is no distinction between liability as a principal and liability for aiding and abetting for the purpose of calculating the limitations period under a statute of limitations.

     Fourth, the Supreme Court held that the post-conviction court did not commit reversible error when it denied appellant’s ineffective assistance of trial and appellate counsel claims.

     Fifth, the Supreme Court held that the post-conviction court did not commit reversible error when it denied appellant’s recanted-testimony claim.

              

.

4. Two Appeals in the Murder of Officer Richard Walton in St. Paul.

THE CRIME: Timothy Eling, Harold Gustafson, and Guy Hathaway decided to rob the pharmacy at Mounds Park Hospital in St. Paul.  On October 25, 1982, they donned ski masks and entered the pharmacy.  Behind her window, the pharmacist called the switchboard to warn of the men's approach.  While the men forced their way into the office with three guns drawn, Oakdale Officer Richard Walton emerged from an elevator.  Although Officer Walton shot Eling in the leg, the killers shot Officer Walton in the head several times.  He died the next morning.


Chief Justice Lorie Skjerven Gildea never got to hear an appeal from Timothy Eling because of a simple twist of fate.  After serving 29 years, Eling was released from prison by Governor Mark Dayton's Corrections Commissioner Tom Roy because Roy said he was impressed by Eling's conduct in the second half of his time in prison and his counselling of younger prisoners against drug abuse.  But in March, 2017, Eling was returned to prison to complete his life sentence because his probation-required urine test showed that he was now using methamphetamine.  See here. A police officer who arrested an armed Eling as he fled a 1972 pharmacy robbery now says he wishes he had shot Eling ten years before Eling killed Officer Walton.

Chief Justice Lorie Skjerven Gildea did get to reject two appeals from Hathaway and Gustafson.

First, in 2007, The Supreme Court rejected Hathaway's second post-conviction appeal.  See here. 

     First, the Supreme Court rejected Hathaway's claim that he should be excused from killing Officer Walton because Hathaway was illiterate at the time of the murder.

     Second, the Supreme Court rejected Hathaway's claim that he should be excused from killing Officer Walton because the citations to the law were wrong at some points in the trial.

     Third, the Supreme Court rejected Hathaway's claim that he should be excused from killing Officer Walton because the prosecutor referred to the victim as "Officer Walton" during the trial.

     Fourth, the Supreme Court rejected Hathaway's claim that he should be excused from killing Officer Walton because the trial violated his rights to due process, equal protection, and a ban on cruel and unusual punishment.  The Supreme Court noted that there was no factual basis for this claim.

     Fifth, the Supreme Court rejected Hathaway's claim that he should be excused from killing Officer Walton because was improperly denied the ability to attend the hearing on his first post-conviction petition.  Hathaway did not, however, have a right to attend that hearing.

     Sixth, the Supreme Court rejected Hathaway's claim that he should be excused from killing Officer Walton because newly-discovered evidence could have led to an acquittal.  The Supreme Court noted that the evidence was new was actually known to Hathaway at trial or should have been known.

     Seventh, the Supreme Court rejected Hathaway's claim that he had ineffective assistance of counsel.  The Supreme Court scrutinized the record and found counsel to be effective.

     Eighth, the Supreme Court rejected Hathaway's claim that he should have been guaranteed taxpayer-funded counsel for this third appeal.  The Supreme Court noted that Minnesota law only guarantees taxpayer-funded legal representation for the first appeal.

Second, in 2008, the Supreme Court rejected Gustafson's second post-conviction from his conviction and sentence.  See here. 

     First the Supreme Court rejected Gustafson's claim that he should have a new trial because of newly-discovered evidence.  The Supreme Court noted that this claim was time-barred because the allegedly new evidence should have been known and asserted at the time of the direct appeal.

     Second, the Supreme Court rejected Gustafson's claim based on the assertion that a State witness provided false testimony at trial because petitioner failed to allege facts sufficient to entitle him to relief.

     Third, the Supreme Court rejected Gustafson's claim based on the assertion that the State made a secret deal with a witness in order to obtain testimony against petitioner because petitioner failed to provide factual support for his claim.

     Fourth, the Supreme Court rejected Gustafson's claim for taxpayer-funded counsel because he is not entitled to appointed counsel in these post-conviction proceedings because he has already had a direct appeal and a prior post-conviction proceeding.

.

.

5. Two Appeals in the Murder of Officer Jerry Haaf in Minneapolis.

THE CRIME:  On September 25, 1992, Minneapolis affiliates of the Vice Lords gang Adl El Shabazz (A.C. Ford). Montery Willis, Samuel "Shariff Willis, Mwati “Pepi” McKenzie, and Shannon Bowles (Nantambu Kambon) met to discuss a plan to kill a bus driver or a police officer.

Officer Jerry Haaf was shot in the back four times by two or three young men as he sat and drank coffee at the Pizza Shack on Lake Street that might.  It is suspected that Ed Harris and other Vice Lord associates were subsequently murdered by Vice Lord affiliates to cover up liability for the murder of Officer Haaf.

McKenzie was convicted and sentenced to life in 1993.  See here. ;

Shannon Bowles was convicted and sentenced to two life terms and 180 months in 1994.  See here.

Montery Willis was convicted and sentenced in 1995 and sentenced to life plus 220 months.  See here.

Samuel "Sharif" Willis was convicted and sentenced to twenty-nine years by a federal court on unrelated terrorism charges related to the Vice Lords gang and The City in Minneapolis.

Ford was convicted and sentenced to life plus twenty years in 2005.  See here.

Chief Justice Lorie Skjerven ruled on two appeals by Mwati "Pepi" Mckenzie.

First, in 2005, the Supreme Court rejected McKenzie's fifth appeal.  See here.

     The Supreme Court held that McKenzie's two claims regarding the Hennepin grand jury process and ineffective assistance of counsel were barred because he did or should have known about these claims but did not raise them in earlier appeals.

In 2006, the Supreme Court rejected McKenzie's sixth appeal.  See here.

     First, the Supreme Court rejected McKenzie's claim that his sentence violated the Blakely doctrine because because Blakely v. Washington, 542 U.S. 296 (2004), does not apply retroactively to petitioner, and further, petitioner’s mandatory life sentence does not violate the rule of Blakely.

     Second, the Supreme Court rejected McKenzie's claim that the Department of Corrections violated his due process rights when it withheld money from his wages for the Crime Victims Reparations Board fails because it was improper to bring the claim in a petition for post-conviction relief.

.

.

6. Two Appeals in the Murder of Deputy Christopher Lee Dewey in Mahnomen.

THE CRIME: After a night of drinking, firing a handgun in a trailer home, a drunken car crash, and two visits by police officers, Fairbanks and a friend went to a neighbor’s home to seek more alcohol in the pre-dawn hours of February 18, 2009.  Mahnomen County Deputy Christopher Dewey rolled into the driveway, left his unit and asked the two men to raise their hands.  The friend tried to tackle Deputy Dewey, and as the officer twisted away, Fairbanks fatally shot Deputy Dewey in the face.  Dewey died of his wounds 18 months after the shooting.

Fairbanks was convicted by a Polk County jury in nearby Crookston and sentenced to life without the possibility of release in 2011.

Chief Justice Lorie Skjerven Gildea upheld Fairbanks' conviction and sentence twice.

     First, in 2014, the Supreme Court rejected Fairbanks; direct appeal.  See here. 

     First, after Fairbanks had requested a change of venue from Mahnomen County, the Supreme Court upheld the district judge's decision to move the trial to nearby Polk County for proper reasons.

     Second, the Supreme Court held that the traditional common-law rule regarding a death more than a year after the proximate cause of the death did not bar Fairbank's conviction and sentence for first-degree murder when Deputy Dewey died 18 months after he was shot.  The Supreme Court ruled that the year-and-a-day rule did not apply to the homicide statute.

     Third, the Supreme Court held that the district court did not abuse its discretion in admitting into evidence autopsy and “spark-of-life” photographs of the victim.

     Fourth, the Supreme Court held that the evidence is sufficient to support defendant’s convictions on three counts of first-degree assault of law enforcement officers.  But conviction on a fourth
count must be reversed because the evidence is insufficient to prove that defendant fired
in the direction of the law enforcement officers.

     Second, in 2016, the Supreme Court rejected Fairbanks' post-conviction appeal.  See here.

     First, the Supreme Court rejected Fairbanks' claim that he did not cause Deputy Dewey's death and that the "causation in fact" was some situation at the hospital in the 18 months between the shooting and the death.  The Supreme Court held that Dewey had waived that claim when he did not raise it during his direct appeal.

     Second, the Supreme Court rejected several other claims that had been drafted by Fairbanks himself because "none of them have any basis in law or fact."

7. The Murder of Deputy John Liebenstein near Faribault.

THE CRIME:  On May 6, 1996, Timothy Patrick Chambers stole a car in Prior Lake and led a  chase for 35 miles through three counties that exceeded 115 miles per hour,  When Deputy John Liebenstein tried to end the chase by blocking an off-ramp with his squad on Interstate 35 along the Rice and Dakota Counties line near Faribault, Chambers deliberately crashed into the squad car and crushed to death Deputy Liebensteiner.

Chief Justice Lorie Skjerven Gildea has not ruled on any appeals by Chambers who lost most of his appeals before she joined the Supreme Court.  He is currently serving his life sentence in the Oak Park Heights Correctional Facility near Stillwater.

8. Appeal in the Murder of Officer Shawn Silvera near Lino Lakes.

THE CRIME:  On September 6, 2005, hophead Stephen Stanke was on the run from multiple drug and burglary charges in South Dakota.  He had not slept for two weeks because of meth abuse.  He stole a car and led police on a 14-mile chase in rush hour.  Nearing the Twin Cities at 110 miles per hour while smoking more meth, Stanke approached Forest Lake. Lino Lake Officer Shawn Silvera tried to slow Stanke with "stop sticks."  Stanke deliberately ran over and killed Officer Silvera.

In 2006, Stanke pleaded guilty and the district court sentenced him to a term of imprisonment of forty years, double the recommended sentence.

Chief Justice Lorie Skjerven Gildea joined the Supreme Court in upholding the sentence in 2009.  See here. 

In 2009, the Supreme Court upheld the doubling of Stanke's proposed sentence in the wake of his guilty plea.

"Although Officer Silvera’s particular vulnerability as a peace officer cannot be used as an aggravating factor, the circumstances surrounding his death were properly considered by the district court.  The admitted facts are so extreme that we are convinced that they support a greater-than-double-durational departure and that the absence of the aggravating factor of Officer Silvera’s particular vulnerability would not change the district court’s sentence on remand.  Therefore, to remand this case to the district court would not be a prudent use of the time and resources of the judicial system.  Thus, given the atypical and particularly egregious facts of this case, we affirm the district court’s sentence. "  

       

9. The Murder of Officer Scott Patrick in Mendota Heights.

THE CRIME:  On July 30, 2014, Officer Scott Patrick pulled over a motorist on Dodd Road in Mendota Heights.  As he stood by the door of his squad, Officer Patrick was shot several times in the head by fugitive and career criminal Brian Fitch and died.

Fitch drove a few miles north from Dakota County and hid for most of the day in St. Paul.  As the sun set, Fitch tried to flee east, the skinhead was wounded and captured in a hail of bullets in Ramsey County. 

The prosecution for the Dakota County murder and the escape-related gunfire in Ramsey County was transferred to a St. Cloud courtroom about 90 miles west in Stearns County.  Fitch was convicted in 2015 and sentenced to life without the possibility of release.

Chief Justice Lorie Skjerven Gildea ruled to sustain Fitch's conviction and sentence in 2015, when the Supreme Court rejected the direct appeal by Fitch.  See here.

     First, the Supreme Court upheld the transfer of the trial from Dakota and Ramsey Counties to Stearns County.

     Second, the Supreme Court upheld the merger of the prosecutions for the Dakota County murder with the Ramsey County attempted murder charges arising from Fitch's shoot-out in St, Paul.

10. Appeal in the Murder of Probation Officer Howard Porter in St. Paul.

THE CRIME:  An injury, a subsequent drug addiction, and bad decisions ruined the life of former Villanova basketball star, NCAA champion, former NBA basketball player, and Ramsey County Probation Officer Howard Porter.  But he did not deserve to be robbed and beaten to death by a pimp.

On May 18, 2007, Porter was trying to trade his crack cocaine and cash for sex with a Frogtown prostitute.  Her pimp broke into her St. Paul apartment and beat Porter to death.

Rashad Arthur Raleigh first held Porter at gunpoint.  Then he robbed and beat him unconscious with the gun and a chair.  When Raleigh and the prostitute went out to examine Porter's car, they discovered that Porter was a Probation Officer.  Fearful that Porter would identify him, Raleigh continued to beat Porter's head until Raleigh thought he was dead.  Raleigh drove Porter to Minneapolis and dumped the body.  Porter was later revived, but he died a week later.

Raleigh pleaded guilty to first-degree premeditated murder in 2008.  He agreed to accept a sentence of life without release.  In return, prosecutors agreed to drop a felony homicide charge and to stop police investigation of Raleigh for a different triple homicide in Ramsey County.   After his plea was accepted, Raleigh attempted to withdraw his plea without explanation.  He was sentenced to life without release.

Chief Justice Lorie Skjerven Gildea upheld Raleigh's conviction and sentence.  See here.

In 2010, the Supreme Court rejected Raleigh's two claims.

     First the Supreme Court held that Raleigh failed to show his guilty plea to first-degree premeditated murder was invalid; thus, appellant is not entitled to withdraw his plea to correct a “manifest injustice” under the relevant Minnesota criminal statute.

     Second the Supreme Court held that the district court did not abuse its discretion in denying Raleigh's motion to withdraw his guilty plea to first-degree premeditated murder because appellant failed to advance substantiated reasons why withdrawal was “fair and just” under the relevant Minnesota criminal statute.

11. Minneapolis Cannot Force Police to Pay for their own Personal Liability Insurance.

Chief Justice Lorie Skjerven Gildea wrote a 2016 order and a 2017 final opinion that kept a proposition off the 2016 ballot that would have required MPD officers to pay for their own personal professional liability insurance.

On August 5, 2016, the Minneapolis City Council rejected a petition to place a question on the ballot for the general election on November 8, 2016 that would ask city voters whether to amend the Minneapolis City Charter by adopting a provision requiring city police officers to obtain and maintain professional liability insurance for certain wrongful acts.

On August 5, 2016, appellants David Bicking filed a petition in the district court, pursuant to Milll1. Stat. § 204B.44 (Supp. 2015), for correction of a ballot error and for a declaratory judgment directing the City Clerk to forward the proposed charter amendment to the Helll1epin County Election Manager for inclusion on the November general election ballot.

Following briefing, the district court dismissed the petition after finding that the proposed charter amendment is preempted by and in conflict with state law.

First, on August 31, 2016, Chief Justice Lorie Skjerven Gildea issued an emergency Order to keep the issue off the November, 2016 ballot in Minneapolis.  See here. 

She wrote:  "We conclude that the district court correctly decided that the proposed liability-insurance amendment is preempted by state law and, therefore, is improper and cannot be included in the Minneapolis City Charter. The order and judgment of the district court dismissing the petition of appellants' David Bicking is affirmed. This order is issued with opinion to follow."

Second, on March 15, 2017, Chief Justice Lorie Skjerven Gildea wrote the Opinion which explained why the issue was kept off the ballot.  See here. 

She wrote:  "The Supreme Court held that a justiciable controversy is presented by a dispute regarding the City’s authority to refuse to place a proposed charter-amendment question on the ballot.

"The district court did not err in dismissing appellants’ petition to require the City to place a question proposing an amendment to the City Charter on the ballot for the general election because the proposed charter amendment conflicts with state law. Affirmed."

12. Do Not Threaten To Kill Officers with a Hand Grenade.

The Supreme Court demanded that a man serve the mandated sentence for threatening law enforcement officers on-line with murder when it reversed down-ward sentencing departures for a man who threatened to kill police officers with a hand grenade, to kill five officers, to hunt and kill cops," to look for the State Trooper who pulled me over," because "they don't call me cop-killer for nothing." 

In upholding the law, the Supreme Court reversed the decisions by the district court and the Court of Appeals.

THE CRIME:  At 1:00 a.m. on February 4, 2014, a Minnesota State Trooper stopped a vehicle driven by Rund for speeding. It was not the first time that the trooper had stopped Rund.  During the stop, Rund and the trooper “had a disagreement.” Ultimately, the trooper searched the trunk of Rund’s vehicle, where he found marijuana that was later seized.

Ruud returned home and began drinking and tweeting.  He made five tweets which were deemed to be threats.  He threatened to kill five police officers that day, to throw a grenade into a room, to “hunt and kill cops,” to look “for the trooper who pulled me over,” because “they don’t call me cop killer for nothing.”  The tweet that referred to the use of a grenade was posted along with a photograph of a group of St. Paul police officers.

Police arrested Ruud that day and charged him with terroristic threats. 

THE TRIAL AND APPEAL:  Ruud pleaded guilty.  The district court sentenced Ruud to365 days in jail, with 245 days stayed, with probation and treatment.  The district court indicated that this downward departure from the sentence recommended by the Sentencing Guidelines was justified by Ruud’s remorse, lack of judgement at the time of the crime, amenability to treatment, and amenability to treatment.  The district court omitted serious aggravating factors from its sentencing report.

The Court of Appeals rejected the prosecution’s appeal from the down-ward departure in the sentence.  It affirmed the sentence.

THE SUPREME COURT DECISION: The Supreme Court imposed the full sentence on June 7, 2017.  See here.

     First, the Supreme Court held that "the reasons given by the district court for the downward durational sentencing departure in this case, which involved a conviction of terroristic threats, were improper."

     Second, the Supreme Court held that "the district court's record contained insufficient evidence to justify a downward durational departure on the alternative grounds of remorse and the social media context of the terroristic threats. Reversed and remanded."

     Third, the Supreme Court noted several aggravating circumstances in this crime which should be considered:  number of acts with multiple tweets; multiple targets; use of Twitter’s “mention” function which increased the chance that victims would see the threats; the mention of a crime of violence (murder being the most serious of these threats) and means (grenade); and “as the district court aptly observed in this case, the anonymity that social media often provides can make the threats worse.”

13. A Lawyer who lies to a Police Officer can face Discipline.

The Supreme Court suspended the law license of attorney Mitchell J. Ask on July 26, 2017 in part because the lawyer "made "a false statement to a police officer."

The Supreme Court made this disciplinary decision on July 26, 2017.  See here.

14. A Lawyer who Lies to Police can face Disbarment.

Insert this case.

15. Police emergency-aid entry to flophouse without warrant.

The Supreme Court upheld a warrantless emergency search for victims at a house near a brutal sidewalk murder under the "emergency-aid" exception to the warrant requirement.

The officers had reasonable grounds to believe that a burglary was in progress or had recently occurred, the entry was motivated primarily to look for possible victims, and the scope of the search was limited to the emergency."

THE CRIME:  Before 6:15 a.m. on July 9, 2003, Lemieux used a baseball bat to rob a 68-year-old newspaper courier, strip him to one sock, and beat his head in on the steps of Teitelbaum's home in Duluth.  Investigating officers saw Lemieux leaving the scene in a cab.  The cab company reported that the ride had originated at a well-known flophouse where there had been many police calls.

Concerned that the killer may have returned to the flophouse to continue his crime spree, officers visited the home.  There was no answer to their knocks on the door, and the telephone had been disconnected.  Seeking any additional victims, they entered the building and conducted a "sweep search" for any victims.  When they saw Teitelbaum's Food Stamp card in plain sight, they left the building and awaited a warrant.

With the warrant, police found several smears of Teitelbam's blood and DNA, several of Teitelbam's possessions.  and Teitelbaum's credit union envelope containing $180 and bearing the fingerprints of both Teitelbaum and Lemieux.  Upon his arrest, Lemieux confessed.

Lemieux was convicted of first-degree premeditated murder and sentenced to life in prison.

On January 17, 2007, the Supreme Court rejected Lemieux's direct appeal which had focused solely on the warrantless "emergency aid" search of the flophouse.  See here.

16. Lunging at a Deputy with a Handgun is Evidence of Intent to Assault.

The Supreme Court held that there was adequate evidence to sustain a conviction for assaulting a police officer. 

An armed murderer had fled into the darkness, been pursued by police for seven hours, been found in the basement of an apartment house, seen through a window brandishing a rifle and a handgun at three residents, ordered to drop his weapons and surrender, opened a screen door, and lunged at Deputy Chad Meemken with a handgun, then was shot in the leg and captured.  For the Minnesota Supreme Court, that was enough evidence to convict the murderer of a second charge of assault.

THE CRIME:  In 2012, Marcus Michael Barshaw murdered his girlfriend's husband near Rockville and fled on foot into the darkness.   Seven hours later, he was captured.

THE TRIAL:   The Stearns County District Court convicted Barshaw of first-degree premeditated murder and assaulting a peace officer.  The judge sentenced Barshaw to life without release for the murder and added an extra 120 months for the assault of the peace officer.

THE APPEAL:  On May 25, 2016, the Supreme Court rejected Barshaw's direct appeal on two grounds.  See here. 

     First, the Supreme Court rejected Barshaw's claim that the murder had been committed by his girlfriend, or had not been premeditated. 

     A witness testified that the wife was trying to de-escalate the shouting between Barshaw and the husband.  Before travelling two hours to the victim's home, Barshaw had fantasized on Facebook about dying that night in a blaze of gunfire.  Barshaw had loaded his rifle and handgun and put the weapons in the car's truck before driving to the crime scene.  Barshaw had taken the weapons from the trunk into the victim's recreational vehicle.  Barshaw retrieved the guns from the back of the RV and exploded outside to chase the victim and shoot him repeatedly.  Barshaw was arrested with the murder weapon beside his bleeding body.

     Second, the Supreme Court rejected Barshaw's claim that he did not intend to assault Deputy Meemken.

     "Because the evidence of appellant’s intent to cause a peace officer to fear
immediate bodily harm was sufficient, the district court did not err in convicting
appellant of first-degree assault of a peace officer.  "

17. Upholding a Judge who Ordered a Lawyer to Apologize to a Police Officer.

The Supreme Court upheld a disciplinary panel's decision not to discipline a judge who ordered a defense lawyer to apologize for impugning the integrity of a peace officer, and directing the lawyer to write a letter of apology to the peace officer.

THE BACKGROUND:  During an omnibus hearing in Stillwater, Judge Gregory G. Galler ordered a defense lawyer to apologize and write a letter of apology to a peace officer for impugning the integrity of the officer.

Instead, the defense lawyer filed a complaint with the Minnesota Board of Judicial Standards, alleging that Judge Galler had "created the appearance of impropriety" by ordering the apology.

A panel appointed by the Board held a hearing and dismissed the charges against Judge Galler, who was later re-elected and still sits on the bench in 2017.  The panel found that the Board failed to prove the allegations in its complaint by clear and convincing evidence, including the primary allegation that Judge Galler had ordered the defense attorney to apologize for impugning the integrity of the police officer.

The Board appealed the decision of its own panel to the Supreme Court and asked for the discipline of Judge Faller.

On November 9, 2011, the Supreme Court rejected the Board's appeal.  See here. 

     First, the Supreme Court held that "a hearing panel must dismiss a judicial discipline complaint when the Board on Judicial Standards fails to present clear and convincing evidence of judicial
misconduct.  

     Second, the Supreme Court held that "the factual findings of a hearing panel are sufficient for review by the court when the panel finds that the Board has failed to prove the specific factual allegations in the Board’s judicial discipline complaint by clear and convincing evidence."

     Third, the Supreme Court explained that "the Curt reviews a hearing panel’s dismissal of a judicial discipline complaint de novo but gives deference to the panel’s factual findings."

18. Assaulting Law forcement Officers Can Deserve Over Ten Years Served,

The Supreme Court ordered a Keewatin man who shot at four Itasca County Deputies and a Minnesota State Trooper to serve 10.5 years in prison and serve another five years on supervised release.

On July 20, 2011, the Supreme Court upheld the district court's sentence of 126 months to be served and 63 months on supervised release for Stephen Dale Leathers.  See here.

19. Only a Qualified Officer can exercise full Authority of a Licensed Peace Officer.

Chief Justice Lorie Skjerven Gildea wrote for the Supreme Court that only a licensed peace officer can exercise the authority of a licensed peace officer in enforcing the criminal law against "test refusal."  See here.

THE CRIME:  In 2008, a driver refused to take a sobriety test requested by a police officer of the Lower Sioux Community and was charged with "test refusal.

Tribal officers rescued Hester from a ditch after he slid off an icy road with temperatures of 15 degrees below zero.  He failed a preliminary breath test at .12 and he failed field sobriety tests inside at the Redwood County Jail where he had been taken to warm up.  Hester refused a comprehensive breath test requested by the tribal officers.

A DWI charge was dismissed, but a Redwood County jury convicted Hester of first-degree test refusal. 

The trial judge rejected Hester's motion for a new trial when he claimed that he had not refused a test requested by a Qualified Peace Officer because the Lower Sioux officers did not qualify as certified officers because the tribe did not provide the insurance required for officers licensed by the Peace Officers Standards and Training Board ("POST").  The trial judge held that the tribal officers were qualified officers for the purposes of the "test refusal" statute.

The Court of Appeals affirmed the trial judge's holding.

On April 27, 2011, the Supreme Court reversed the district judge and the Court of Appeals.

Chief Justice Lorie Skjerven Gildea wrote:  "because the Lower Sioux did not comply with state law by failing to carry the required liability insurance limits at the time of appellant’s arrest, the Lower Sioux police officer did not have the authority to request that appellant take a chemical test. "

20. Defamatory False Statements to Police are Criminal.

The Supreme Court upheld a statute which make it a crime to knowingly make false statements to police which are defamatory to other police officers.  The Supreme Court held that this did not violate the First Amendment's restriction against content-based regulation of free speech.

THE CRIME:  In 2008, police in Winona were investigating a beating of Melisa Jean Crawley.  An investigator secured medical records on Crawley at the hospital, where Crawley had signed a release for the records.

Crawley later reported that a police officer had forged her signature on the release form to get her records.  An assigned investigator looking into Crawley's report found a nurse at the hospital who had watched Crawley sign the release.

Crawley was charged with both "falsely reporting an act of police misconduct" and "falsely reporting a crime,

The Winona County District Court convicted Crawley of both counts, but only sentenced her to 15 days in jail for the second count.

The Court of Appeals reversed the conviction on the second count (holding that the "falsely reporting a crime" law was unconstitutional) and ordered Crawley's case returned to the trial judge for sentencing on the "falsely reporting police misconduct" conviction.

On August 8, 2012, the Supreme Court granted the prosecution's request for a review.  See here.

     First, the Supreme Court held that the defamation prohibited by the Minnesota statute fell under two exceptions to the Free Speech protection because such intentionally false and defamatory speech was not protected.

     Second, the Supreme Court granted Crawley a new trial that would apply the new Minnesota rules about Free Speech restrictions outlined in its other finding in this opinion.

21. Fleeing a Law Enforcement Officer on Foot.

The Supreme Court upheld the "fleeing police on foot" statute and affirmed a conviction in a trial where the judge denied a "voluntary intoxication" instruction where the defendant claimed she lacked the "specific intent" to commit the crime.

THE CRIME:  In 2010, Officer Jeffrey Imming arrived after a man had been repeatedly stabbed at Sunny's Bar near Chicago and Lake in Minneapolis.  Witnesses identified Demario Lawrence as the stabber.  Lawrence and Sharon Karen Wilson were standing outside the bar.  When Officer Imming spoke to them, Lawrence and Wilson fled.  When Lawrence dropped a knife, Wilson picked it up and continued running.  When Officer Imming caught Wilson, he fell and shattered his ankle.  Officer Jeffry Jindra then apprehended both Lawrence and Wilson.  The knife was recovered shortly thereafter.

Wilson was charged with fleeing an officer on foot.  She was denied a "voluntary intoxication" instruction, and a Hennepin County jury convicted her.  

The Court of Appeals upheld the conviction and the district court's denial of a "voluntary intoxication" instruction which would have supported Wilson's "specific intent" defense, because the Court of Appeals held that "fleeing on foot" was a general intent crime which would not be excused by a "voluntary intoxication" defense.

On May 22, 2013, the Supreme Court upheld the conviction and both the district judge and the Court of Appeals.  See here. 

     First, the Supreme Court held that the offense of fleeing a peace officer by means other than a motor vehicle is a specific-intent crime.

     Second, the Supreme Court held that, when determining whether a defendant is entitled to a voluntary intoxication jury instruction, the evidence is viewed in a light most favorable to the defendant.

     Third, the Supreme Court held that the district court’s failure to give a voluntary intoxication jury instruction was harmless beyond a reasonable doubt. Affirmed.

22. Give Hearings to Officers if they claim "Defamation."

The Supreme Court held that a Community Service Officer had a right to a fair hearing on his "defamation" claim against MPD and his superior.

THE ISSUE:  CSO Travis Minke passed the Peace Officer Licensing Exam which qualified him to apply for a position as a law enforcement officer. In 2006-2007, CSO Travis worked for the Minneapolis Police Department in hopes of joining the next MPD Academy class.

When he learned in December, 2007 that he would not be in the next MPD class, he applied to the Mounds View department and other law enforcement agencies.  He gave them clearance to talk to his MPD supervisor, Sergeant Janice Callaway.

CSO Minke later alleged that he learned that Sergeant Callaway had given him negative reviews.  CSO Minke alleged that, in the interview, Sergeant Callaway made statements that were defamatory, including “attacks on [his] honesty, integrity, character, work ethic, and performance.”  CSO Minke further alleged that the statements caused Mounds View not to hire him.

CSO Minke sued the City and Sergeant Callaway for "interference with prospective economic gain" and "defamation."

The district court dismissed the "interference" claim but ruled that it would hear the "defamation" claim.  The district court concluded that Sergeant Callaway’s allegedly defamatory statements were not absolutely privileged because, as a matter of fact, “providing recommendations for former CSOs [was] not part of [Sergeant] Callaway’s job duties.”  

The court of appeals affirmed in an unpublished opinion.

On April 9, 2014, the Supreme Court affirmed the district court and the Court of Appeals and granted a fair hearing on the "defamation" claim of CSO Minke.  See here. 

     The Supreme Court held:  "Absolute privilege does not extend to allegedly defamatory statements about an applicant for a peace officer position made during a background investigation.   Affirmed."

23. Preserve Officers' Immunity in Most Collisions.

The Supreme Court ruled that law enforcement officers are immune from personal liability for most service-related traffic collisions.

THE ISSUE:  On Christmas Day, 2009. Hennepin County Sheriff's Deputy Jason Lee Majeski was in hot pursuit of two burglary suspects.  As he approached the vicinity of the suspects, he kept his emergency lights on, but turned off his siren so as to not alert the suspects.  Vehicles had pulled over at the intersection in response to his lights and siren before he turned off the siren, and he saw no approaching vehicles as he approached the intersection.  But upon entering the intersection, he collided with Jolene Vasallo who was advancing on the cross street.

Vasallo sued the County and Deputy Majeski individually.

The district court found that, because Deputy Majeski’s actions were discretionary and not ministerial and did not involve a willful or malicious wrong, he was entitled to official immunity. 

The court of appeals reversed and remanded for additional fact finding.

On February 12, 2014, the Supreme Court reversed the Court of Appeals and upheld the district court's finding that Deputy Majeski was shielded by immunity.  See here.  

     First, the Supreme Court held that "because we hold, based on the undisputed facts, that Deputy Majeski did not violate any ministerial duty created by these statutory and policy provisions, we reverse the court of appeals and remand to the district court for entry of judgment in favor of appellants."

     Second, the Supreme Court held that: "In analyzing the applicability of official immunity, a court must first determine whether a particular duty is discretionary or ministerial.  Only if the duty is determined to be ministerial is it then proper to consider the question of compliance with the duty.  

     Third, the Supreme Court held:  "The requirement of state law that an emergency vehicle, “upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety, but may proceed cautiously past such red or stop sign or signal,” creates a discretionary duty." 

     Fourth, the Supreme Court held:  "The requirement of state law that a law enforcement vehicle, upon approaching a red or stop signal or any stop sign, “shall sound its siren or display at least one lighted red light to the front,” creates a ministerial duty with which the defendant complied." 

     Fifth, the Supreme Court held:  "The requirement of Hennepin County Sheriff’s Office Policy 6-402 to use “both red lights and siren . . . when responding to an emergency” does not create a ministerial duty that was violated by the defendant in this case. "

     Sixth, the Supreme Court held:  "The requirement of Hennepin County Sheriff’s Office Policy 6-402 “to drive with due regard for the safety of all persons” creates a discretionary duty." 

     Seventh, the Supreme Court held:  "The exception to immunity for malicious acts permits liability only when the official willfully or maliciously violates a known right. "

Thus, the Supreme Court upheld the district court's finding of immunity for Deputy Majeski in this collision.

24. Set a Reasonable Basis for Search Warrants.

The Supreme Court set a reasonable standards test for affidavits seeking a search warrant.

THE CRIME:  On May 7, 2012, a witness reported that LaDream Hampton Yarbrough brandished a handgun at a woman in a St. Paul park and threatened her for stealing “a large amount” of his crack cocaine.  Yarbrough then left the scene in a maroon Chevrolet Caprice bearing a specified Minnesota license plate number.   A woman drove the car.

 Using databases, Saint Paul police officers discovered that Yarbrough and his female roommate lived in an apartment on West 7th Street.  Officers observed the maroon Chevrolet Caprice with the specified license plate number parked at the rear of the apartment building.  The vehicle was registered to Yarbrough’s roommate at that address.

 Officers also learned from a confidential reliable informant that Yarbrough was a known dealer of crack cocaine and carried a handgun.  Yarbrough had been arrested on February 14, 2012, for possession of a controlled substance with intent to distribute.  At the time of that arrest, Yarbrough’s roommate was with him in the same maroon Chevrolet Caprice.  

 Based on this information, on May 10, 2012, officers applied for a warrant to search Yarbrough, the maroon Chevrolet Caprice, and the apartment.  That same day, a Ramsey County judge issued the warrant.  Among other things, the warrant authorized the officers to search the apartment for firearms, ammunition, papers showing control of the residence, and controlled substances.

The next day officers arrested Yarbrough.  Then they executed the search warrant at the apartment.  During the search, officers recovered a large amount of cash, a silver handgun with a black grip that was later determined to be stolen, ammunition, and drugs. 

The State charged Yarbrough in Ramsey County District Court with felony possession of
cocaine; felony possession of marijuana; and receipt of stolen property (the handgun).

Before trial, Yarbrough filed a written motion to suppress evidence, including evidence seized from the apartment. The district court granted Yarbrough’s motion to suppress the evidence from the apartment on the ground that the search warrant affidavit failed to establish a sufficient nexus between Yarbrough’s alleged criminal activity and the apartment.

 Because the district court’s order suppressing the gun and drug evidence from the apartment had a critical impact on the State’s case, the State appealed. 

The Minnesota Court of Appeals reversed, stating that it was reasonable to infer that Yarbrough would keep at the apartment the handgun used in the May 7 confrontation.  The court of appeals therefore held that the handgun information in the search warrant affidavit established probable cause to search the apartment for gun evidence.  Without reaching the nexus issue regarding the drug information in the search warrant affidavit, the court of appeals applied the plain view doctrine and ruled that the drug evidence was admissible.

On January 8, 2014, the Supreme Court held that the affidavit for the warrant was reasonable, the search warrant was valid, the apartment evidence was admissible, and the case was returned to the district court for resolution.  See here.

     The Supreme Court held:  "Because the information in the search warrant affidavit established a sufficient nexus between appellant’s criminal activity and the residence to be searched, the judge issuing the warrant had a substantial basis to find probable cause that handgun and drug
evidence would be found at the residence."

25. Minnesota's Fourth Amendment is not broader than Federal Fourth Amendment.

The Supreme Court held that the Minnesota version of the Fourth Amendment did not create a broader "expectation of privacy" for suspects than the Fourth Amendment in the U.S. Constitution.

Here, the Supreme Court held that a suspect did not have an expectation of privacy in garbage which the suspect placed on the curb and had been picked up by a trash truck.


THE CRIME: In 2012, David McMurray's daughter told her school councilor that she had seen her mother using a pipe to smoke drugs.  As a "mandated reporter," the councilor notified police.  A record check showed that McMurray and his wife had prior convictions for controlled substances.

A police officer arranged with a trash hauler to pick up McMurray's trash, keep it segregated, and to meet the officer at an arranged site for a search.  The search yielded drug paraphernalia and three baggies with traces of methamphetamines.  This evidence was the basis for an affidavit and warrant to search the McMurray home.  

Police executed the search warrant and found McMurray with two other people in an upstairs bedroom.  While searching the bedroom, police found, inside a clothes basket, plastic bags containing a “crystal like substance.”  A laboratory test confirmed that one of the plastic
bags contained 3.3 grams of methamphetamine.  McMurray was charged with third-degree possession of a controlled substance. 

After denying McMurray's motion to suppress evidence found through the warrant which was based on the warrantless search of the garbage, the district court convicted McMurray.

The Court of Appeals affirmed the conviction, holding that federal cases had approved warrantless searches of garbage placed beyond the suspect's property.

On March 11, 2015, the Supreme Court sustained the district court, the Court of appeals, the search, and the conviction.  See here. 

McMurray argued that the Minnesota version of the Fourth Amendment created a broader expectation of privacy in garbage placed beyond the suspect's property than the expectation created by the version of the Fourth Amendment in the United States Constitution.  The Supreme Court disagreed.

     The Supreme Court held:  "In the context of a warrantless search of garbage set out for collection in an area accessible to the public, there is no principled basis for interpreting Article I, Section 10,
of the Minnesota Constitution to provide greater protection than the Fourth Amendment to the United States Constitution. "

26. Gildea upholds "Breath Test Refusal" as a Crime.

Chief Justice Lorie Skjerven Gildea wrote for the Supreme Court in upholding the constitutionality of "test refusal" as a crime.  She was upheld on breath tests by the United States Supreme Court.


2015-010*       State of Minnesota, Respondent, vs. William Robert Bernard, Jr., Appellant.

The U.S. Supreme Court later upheld Chief Justice Lorie Skjerven Gildea's decision to uphold the crime of "test refusal" on breath tests.  The U.S. Supreme Court held that refusal of a blood test could not be a separate crime.

MAJORITY:  Minnesota law makes it a crime for a driver to refuse a request to take a breath test to detect the presence of alcohol if certain conditions are met, including that the driver has been validly arrested for driving while impaired. 

The question presented in this case is whether Minnesota's “breath test refusal statute” violates appellant William Robert Bernard’s right to due process under the United States or Minnesota Constitutions by criminalizing his refusal to consent to an unconstitutional search.  The district court held the test refusal statute was unconstitutional as applied to Bernard, but the court of appeals reversed.

Because we conclude that the breath test the police asked Bernard to take would have been constitutional as a search incident to a valid arrest, and as a result, charging Bernard with criminal test refusal does not implicate a fundamental right, and that the test refusal statute is a reasonable means to a permissive object, we affirm.

HELD:  1. Because a warrantless search of appellant’s breath would have been constitutional as a search incident to a valid arrest, charging appellant with violating Minn. Stat. § 169A.20, subd. 2 (2014), for refusing to take a breathalyzer in this circumstance does not implicate a fundamental right.

 2. Because Minn. Stat. § 169A.20, subd. 2, is a reasonable means to a permissive object, it does not violate appellant’s right to due process under the United States or Minnesota Constitutions.

 Affirmed.

27. Do Not Exclude All Drug Tests By the St. Paul Crime Lab.

Chief Justice Lorie Skjerven Gildea wrote for the Supreme Court in rejecting a blanket policy of excluding drug evidence handled by the Crime Laboratory of the St. Paul Police Department.

2015-152*       State of Minnesota, Respondent, vs. Richard Ellis Hill, Appellant.

This case presents the question of whether we should adopt a rebuttable presumption of contamination for controlled substances that the St. Paul Police Crime Lab (“Crime Lab”) handled and that the Minnesota Bureau of Criminal Apprehension (“BCA”) later tested.  See here. 

The State charged appellant Richard Ellis Hill with aiding and abetting first-degree sale of a mixture of a controlled substance of ten grams or more, in violation of Minn. Stat. § 155.021, subd. 1(1) (2014), in connection with the sale of methamphetamine.  Hill waived his right to a jury and submitted his case to the court. 

During the court trial, Hill objected to the admission of the BCA results that confirmed that the substance was methamphetamine.  Hill argued the BCA test results were unreliable because the contents of the bags might have been contaminated while the bags were in the custody of the Crime Lab, which was investigated for deficiencies in its quality-assurance controls. 

Applying a chain-of-custody analysis, the district court rejected Hill’s contamination argument.  Hill was subsequently convicted of the charged offense. 

The court of appeals affirmed, State v. Hill, No. A13-1803, 2014 WL 6608809, at 5 (Minn. App. Nov. 24, 2014), and we granted review. 

Unlike Scales and Lefthand, the issue at hand does not present statewide implications.  Instead, it is limited to a single testing laboratory.  Furthermore, in both Scales and Lefthand, we acted in response to the State’s refusal to heed admonitions with respect to matters we had identified as necessary for the vindication of a criminal defendant’s rights.  Scales, 518 N.W.2d at 592; Lefthand, 488 N.W.2d at 801-02.  Hill, on the other hand, has not offered any evidence to suggest that the Crime Lab persisted in substandard operations despite our warnings.  See State v. Dominguez-Ramirez, 563 N.W.2d 245, 257 (Minn. 1997) (refusing to exercise our supervisory powers where the State had not “deliberately ignore[d] our prior directives”).  Additionally, the Legislature has since taken action to address the concerns of substandard crime lab operations.  See Minn. Stat. § 299C.157 (2014).  Accordingly, we conclude that the invocation of our supervisory powers to adopt the requested presumption of contamination is not required to ensure the fair administration of justice.

Our holding today should not be read to condone in any way the Crime Lab’s past operations.  Rather, our holding reflects only that the conduct at issue in this case did not rise to the exacting level of a substantive due process violation or necessitate the presumption of contamination that Hill requests.

Affirmed

Gildea (Anderson, Dietzen, Stras, Wright, and Lillehaug)

Took no part:  Hudson

[GILDEA] [DRUGS] [EVIDENCE]

A13-1803,