A16-0283
September 8, 2016
STATE OF MINNESOTA
IN SUPREME COURT
In re Timothy Leslie, Dakota County Sheriff,
Appellant,
State of Minnesota,
v.
District Court File No. 19HA-CR-16-168
John David Emerson,
Respondent.
APPELLANT’S REPLY BRIEF AND ADDENDUM
JAMES C. BACKSTROM
Dakota County Attorney
Phillip D. Prokopowicz
Chief Deputy
Attorney Registration #146924
Helen R. Brosnahan
Assistant County Attorney
Attorney Registration #0266887
1560 Highway 55
Hastings, MN 55033
Telephone: 651-438-4438
OFFICE OF THE MINNESOTA
APPELLATE PUBLIC DEFENDER
CATHRYN MIDDLEBROOK
Chief Appellate Public Defender
Attorney Registration # 162425
Suite 300
540 Fairview Avenue North
St Paul, MN 55104
Telephone: 651-201-6700
ATTORNEY FOR RESPONDENT
ATTORNEYS FOR APPELLANT
LORI SWANSON
Minnesota Attorney General
Michael Everson (#0388310)
Assistant Attorney General
445 Minnesota Street, Suite 1800
St. Paul, MN 55101
Attorneys for Amicus Curiae
Minnesota Attorney General
AMERICAN CIVIL LIBERTIES UNION
OF MINNESOTA
Teresa Nelson (0269736)
Legal Director
2300 Myrtle Avenue, Suite 180
St Paul MN 55114
Attorney for Amicus Curiae American Civil
Liberties Union of Minnesota
TABLE OF CONTENTS
Page
Statement of Facts ................................................................................................................... 1
Introduction ............................................................................................................................. 1
Argument
I.
King was not a radical departure from Fourth Amendment
jurisprudence .................................................................................................... 2
II.
Appellant has met criteria for issuance of a writ ....................................... 11
Conclusion ............................................................................................................................. 16
i
TABLE OF AUTHORITIES
Page
Federal Cases
Maryland v. King, —U.S.—, 133 S.Ct. 1958 (2013) ............................................... passim
Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966) ........................................... 9
United States v. Mitchell, 652 F.3d 387 (3rd Cir. 2011) .................................................. 5
Minnesota Cases
Hamilton v. Comm’r Pub. Safety, 600 n.W.2d 720 (Minn. 1999) ................................. 14
In Re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006) ........................ passim
In Re Welfare of M.L.M., 813 N.W.2d 26 (Minn. 2012) ......................................... 11, 13
Kahn v. Griffin, 701 N.W.2d 825 (Minn. 2005) ........................................................ 8, 10
State v. Bartylla, 755 N.W.2d 8 (Minn. 2008) ........................................................... 6, 11
State v. Bernard, 859 N.W.2d 762 (Minn. 2015) ....................................................... 4, 11
State v. Johnson, 813 N.W.2d 1 (Minn. 2012) ..................................................... 6, 11, 13
State v. Lemmer, 763 N.W.2d 650 (Minn. 2007) ........................................................... 12
State v. Lopez, 778 N.W.2d 700 (Minn. 2010) .............................................................. 13
State v. McMurray, 860 N.W.2d 686 (Minn. 2015) ..................................................... 11
State v. Riley, 226 N.W.2d 907 (Minn. 1975) ........................................................... 4, 10
State v. Scales, 518 N.W.2d 587 (Minn. 1994) .............................................................. 13
State v. Schnagl, 859 N.W.2d 297 (Minn. 2015) ........................................................... 12
State v. Turner, 550 N.W.2d 622 (Minn. 1996) ............................................................ 12
Foreign Cases
Anderson v. Commonwealth, 650 S.E. 2d 702 (Vir. 2007) ............................................... 5
Brown v. State, 79 A.3d 410 (Md. Ct. Spec. App. 2013) ............................................... 5
Ringer v. State, 2014 WL 5577350 (Ind. Ct. App. Nov. 3, 2014) .................................. 5
State v. Biery, 2014 WL 802100 (Kan. Ct. App. Feb. 28, 2014) .................................... 5
State v. Brown, 2013-Ohio3134 (Ct. App.) ..................................................................... 5
State v. Franklin, 76 So.3d 423 (La. 2011) ....................................................................... 5
Minnesota Statutes
Minnesota Statute § 243.166 .......................................................................................... 14
Minnesota Statute § 299C.105 ............................................................... 11, 13, 14, 15, 16
Minnesota Statute § 299C.105 subd. 1(a)(1) ..................................... 1, 6, 7, 8, 9, 10, 12
ii
Minnesota Statute § 299C.105 subd. 1(a)(3) ..................................... 1, 6, 7, 8, 9, 10, 12
Minnesota Statute § 609.117 .......................................................................................... 13
Maryland Statutes
Maryland Public Safety Code § 2—504(a(3)(i) ............................................................ 7
Maryland Public Safety Code § 2—504(d)(1) .............................................................. 7
Maryland Public Safety Code § 2—505(b)(1) ........................................................... 6, 7
Minnesota Rules
Minn. R. Civ. App. 103.03 .............................................................................................. 16
Minn. R. Civ. App. 105 ................................................................................................... 15
Minn. R. Civ. App. 121 ................................................................................................... 16
Minn. R. Crim. P. 11.02 .................................................................................................. 12
Minn. R. Crim. P. 7.01 .................................................................................................... 13
Minn. R. Crim. P. 8.03 .............................................................................................. 12, 13
Minn. R. Crim. P. 9.02 subd. 2(1) ................................................................................. 15
Minn. R. Crim. P. 28.04 .................................................................................................. 15
iii
STATEMENT OF FACTS
In addition to the facts set out in the parties’ principle briefs, Appellant
adds the following:
The underlying criminal case against Respondent Emerson (“Emerson”) is
scheduled for jury trial on January 23, 2017, after the appointment of new
counsel in August 2016.
INTRODUCTION
There is no principled basis to depart from Fourth Amendment
jurisprudence by interpreting the Minnesota Constitution to provide greater
protections than the Fourth Amendment in the standardized collection of DNA
following a judicial determination of probable cause from persons arrested for
committing serious crimes. In their respective briefs, Emerson and the ACLU 1
argue that the United States Supreme Court’s decision in Maryland v. King, —
U.S.—, 133 S.Ct. 1958 (2013), departed from established Fourth Amendment
jurisprudence and that Minnesota Statute Sections 299C.105 subd. 1(a)(1) and (3)
violate the Minnesota Constitution. (RB 2 at 18-21, 22, ACLU Br. 3 at 5). Emerson
also argues that Appellant cannot meet the threshold requirements to obtain a
“ACLU” refers to Amicus Curiae American Civil Liberties Union of Minnesota
“RB” refers to Respondent Emerson’s Brief.
3 “ACLU Br.” refers to the ACLU’s Brief.
1
2
1
writ. RB at 32. 4 This Court should reject these arguments, reverse the decision of
the Court of Appeals and issue the writ.
ARGUMENT
I.
King was not a radical departure from Fourth Amendment
jurisprudence.
King was the logical extension of the principle that it is reasonable to take a
DNA sample from a person convicted of a crime. The King Court evaluated
Maryland’s DNA collection statute under its long established Fourth
Amendment jurisprudence. It reiterated that “the Fourth Amendment’s proper
function is to constrain, not against all intrusions as such, but against intrusions
which are not justified in the circumstances, or which are made in an improper
manner” and that the “ultimate measure of the constitutionality of a
governmental search is reasonableness.” King 133 S.Ct. at 1969 (internal citations
omitted).
The King Court then went on to find:
In some circumstances, such as when faced with
special law enforcement needs, diminished
The ACLU also argues that because an audit in 2001 found there were 5
submission errors, this Court should find the privacy interests of individuals
outweighs the government’s interests in accurately identifying arrestees. Finding
a statute unconstitutional as a result of a statutory violation is not the
appropriate remedy. Minnesota Statute § 299C.155 subd 3 provide for criminal
and civil remedies for violations of the statute. Furthermore, a 2010 audit of the
MN BCA lab found it to comply with federal law and procedures. See
Addendum p. 1.
4
2
expectations of privacy, minimal intrusions, or
the like, the Court has found that certain general,
or individual, circumstances may render a
warrantless search or seizure reasonable. Those
circumstances diminish the need for a warrant,
either because the public interest is such that
neither a warrant nor probable cause is required,
or because an individual is already on notice, for
instance because of his employment, or the
conditions of his release from custody, that some
reasonable police intrusion on his privacy is to be
expected. The need for a warrant is perhaps least
when the search involves no discretion that could
properly be limited by the interpolation of a
neutral magistrate between the citizen and the
law enforcement officer.
King, 133 S.Ct. at 1969-70 (internal citations and quotations
omitted)(emphasis added). While a significant government interest is not by
itself enough to justify a search, the government interest must outweigh the
degree to which the search invades an individual’s legitimate expectations of
privacy. Id at 1977.
The Court determined that:
DNA identification of arrestees is a reasonable
search that can be considered part of a routine
booking procedure. When officers make an arrest
supported by probable cause to hold for a serious
offense and they bring the suspect to the station
to be detained in custody, taking and analyzing a
cheek swab of the arrestee’s DNA is, like
fingerprinting and photographing, a legitimate
police booking procedure that is reasonable
under the Fourth Amendment.
3
Id. at 1980. The King court noted that the search of the suspect at the place
of detention can be extensive, “requiring, for example, some detainees to lift their
genitals or cough in a squatting position.” King, 133 S.Ct. at 1978 (citations
omitted). The King decision is consistent with prior decisions holding that
individuals under arrest have a substantially reduced expectation of privacy. The
King Court recognized that the use of DNA for identification is no different “than
matching an arrestee’s fingerprints to those recovered from a crime scene.” King,
133 S.Ct. at 1972. The minimal intrusion into the privacy of an arrestee is
outweighed by the critical need for law enforcement to accurately identify
detainees. King, 133 S.Ct. at 1974. In the end, the King Court concluded that
forcing an individual to submit to a buccal swab after being arrested was
reasonable because it served the legitimate government interest that law
enforcement needs a safe and accurate way to identify persons and possessions
they take into custody. Id. at 1970.
Indeed, this Court has recognized that individuals who are in custody
have a reduced expectation of privacy. See State v. Riley, 226 N.W.2d 907 (Minn.
1975); State v. Bernard, 859 N.W.2d 762 (Minn. 2015). Several states and the
federal courts have upheld statutes authorizing DNA collection from arrestees,
4
reasoning that the minimal invasion into the individual’s privacy interests were
not outweighed by the substantial state interests in collecting the DNA. 5
In King, the Court also held that the reasonableness inquiry into whether a
warrant is necessary to require an individual to submit to a buccal swab
considers “two other circumstances in which the Court has held that
particularized suspicion is not categorically required: ‘diminished expectations of
privacy and minimal intrusions.’” Id. at 1979 (citation omitted). The Court
ultimately concluded that the intrusion of the buccal swab was minimal and that
the individual’s expectation of privacy is significantly reduced to overcome the
need for a warrant. Id. at 1977-78. The King Court noted that DNA is “a markedly
more accurate form of identifying arrestees” than fingerprints. King, 133 S.Ct. at
1976. The legitimate interests in conclusively identifying individuals arrested for
See United States v. Mitchell, 652 F.3d 387, 410 (3rd Cir. 2011)(upholding
constitutionality of federal statute authorizing routine DNA collection from
individuals arrested for serious crimes); State v. Franklin, 76 So.3d 423 (La.
2011)(collection of DNA pre-conviction from those arrested is no different than
taking fingerprints and photographs); Anderson v. Commonwealth, 650 S.E.2d 702
(Vir. 2007)(taking DNA sample from an arrestee requires no additional finding of
individualized suspicion); Brown v. State, 79 A.3d 410 (Md. Ct. Spec. App.
2013)(buccal swab can be taken from person arrested for violent crime); Ringer v.
State, 2014 WL 5577350 (Ind. Ct. App. Nov. 3, 2014)(obtaining DNA sample does
not violate state or federal constitution); State v. Biery, 2014 WL 802100 (Kan. Ct.
App. Feb. 28, 2014)(DNA collection statute for individuals arrested for a felony
does not violate constitution); State v. Brown, 2013-Ohio3134 (Ct. App.)(buccal
swab can be taken from person under arrest).
5
5
a serious felony are not outweighed by the individuals’ reduced expectation of
privacy associated with being held in custody.
King, was not a radical departure, but rather the natural outcome of prior
precedent recognizing the constitutionality of collecting DNA samples from
persons involved in the criminal justice system. See Bartylla, 755 N.W.2d 8 (Minn.
2008); Johnson, 813 N.W.2d 1, (2012); In re M.L.M, 813 N.W.2d 26 (Minn. 2012).
A. The language and primary purpose of Sections 299C.105 subd.
1(a)(1) and (3) and Maryland Public Safety Code § 2—505(b)(1)
are virtually identical.
The King Court explicitly stated its decision would implicate more than the
specific Maryland law in the case. 133 S.C.t. at 1968 (“Twenty-eight states and the
Federal Government have adopted laws similar to the Maryland Act authorizing
the collection of DNA from some or all arrestees….Although those statutes vary
in their particulars, such as what charges require a DNA sample, their similarity
means that this case implicates more than the specific Maryland law.”)(internal
citation omitted)(emphasis added). The King decision concluding that taking a
DNA sample from individuals arrested and charged with an enumerated serious
felony offense following a probable cause determination implicitly overruled the
Minnesota Court of Appeals decision in C.T.L 6.
6
In Re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006).
6
Both Sections 299C.105 subd. 1(a)(1) and (3) and the Maryland Public
Safety Code Section 2—505 provide for the collection of DNA samples from
individuals who are charged with an enumerated crime and then analyzed
following a determination of probable cause by a judicial officer. See
299C.105subd. 1(a)(1) and (3), and Md. Pub. Saf. Code Ann. §2—504(a)(3)(i)
(2010), §2—504(d)(1)(2010). Both statutes only allow for DNA to be taken for
identification purposes. See 299C.105 subd. 1(a)(1) and (3), Md. Pub. Saf. Code §§
2—505(b)(1) and 2—512(c)(2010).
Emerson argues that the Maryland statute differs from Sections 299C.105
subd. 1(a)(1) and(3) in that its primary purpose is to identify the defendant, to
verify his criminal history for pretrial release determinations, and to uncover
additional information about the arrestee to protect jail staff, whereas the
primary purpose of Sections 299C.105 subd. 1(a)(1) and (3) is to take DNA and
enter it into a system to be used to identify those who have committed other
offenses. See RB at 17. There is no basis for such distinction given the plain
language of the statutes are virtually identical. The Maryland Code limits the
information added to the DNA database and how it may be used to allow “only
DNA records that directly relate to the identification of individuals shall be
collected and stored.” Maryland Pub. Saf. Code §2—505(b)(1). King, 133 S.Ct. at
1967. Similarly, 299C.105 subd 1 incorporated Minn. Stat. § 299C.155 which
7
provides “the results of the bureau’s analysis and related records are private data
on individuals…and may only be used for law enforcement identification
purposes.”
Because the two statutes have virtually identical language and the
Supreme Court’s acknowledgement that its decision will impact those 28 states
and the Federal Government with similar standardized DNA collection laws, its
decision over-ruled the Court of Appeal’s decision in C.T.L. which rested on
Fourth Amendment analysis. As stated in Section III infra., C.T.L. determined
that Sections “299C.105, subd 1(a)(1) and (3) dispense with the requirement
under the Fourth Amendment that before conducting a search, law enforcement
must” first obtain a warrant. Id. at 491 (emphasis added). It was only by proxy
that the court in C.T.L. found Sections 299C.105 subd. 1(a)(1) and (3) violated the
Minnesota Constitution.
B. C.T.L. was not decided on Minnesota constitutional analysis.
Sections 299C.105 subd. 1(a)(1) and (3) do not violate the Minnesota
Constitution. See AB 7 at 20-25 and AG Br. 8 at 7-8. This Court has long held that
when there are substantially identical provisions of the state and federal
constitutions, there is a “general principle favoring uniformity with the federal
7
8
“AB” refers to Appellant’s principle brief.
“AG Br.” refers to the Amicus Curiae Brief of the Minnesota Attorney General.
8
constitution” and the value of “consistency of practice in state and federal
courts.” Kahn v. Griffin, 701 N.W.2d 815, 824 (Minn. 2005).
C.T.L. was not decided on Minnesota constitutional analysis. C.T.L.
acknowledged that “Article I, Section 10 of the Minnesota Constitution is
substantively the same as the Fourth Amendment,” 9 and then relied on the
United States Supreme Court decision in Schmerber v. California, 384 U.S. 757, 86
S.Ct. 1826 (1966), in its analysis of whether the search was constitutional. See
C.T.L. 722 N.W.2d at 490-491. C.T.L. determined that Sections “299C.105, subd
1(a)(1) and (3) dispense with the requirement under the Fourth Amendment that
before conducting a search, law enforcement must” first obtain a warrant. Id. at
491 (emphasis added). Even though the specific issue certified to the Court of
Appeals in C.T.L. was whether 299C.105 subd. 1(a)(1) and (3) violate the Fourth
Amendment and Art. I, Section 10 of the Minnesota Constitution, the C.T.L.
Court in its decision did not conduct a separate analysis of the Minnesota
Constitution and it was only by proxy that the C.T.L. Court found the statute to
violate the Minnesota Constitution.
If this Court agrees that Section 299C.105 is constitutional under the Fourth
Amendment and the King decision, the C.T.L. decision has diminished
precedential value because this Court accepted review on the constitutionality of
Section 299C under the Minnesota Constitution.
9
9
C. Minnesota Statute Sections 299C. 105 subd. 1(a)(1) and (3) do
not violate the Minnesota Constitution.
In King, the Court determined taking a buccal swab DNA sample from
individuals charged with a serious crime following a determination of probable
cause, does not violate the Fourth Amendment of the United States Constitution.
This Court has never addressed the issue of whether taking DNA samples from
individuals pre-conviction violates the Minnesota Constitution. Minnesota courts
have long recognized that individuals who have been arrested have a diminished
expectation of privacy. See State v. Riley, 226 N.W.2d 907(1975). There is no
principled reason to depart from Fourth Amendment jurisprudence which is
sufficient to protect the basic rights and liberties of Minnesota citizens.
This Court generally does not independently apply the state constitution
“absent language, concerns, and traditions unique to Minnesota.” Kahn, 701
N.W.2d at 824 (Minn. 2005). Unlike those decisions relied on by Emerson where
this Court has departed from established Fourth Amendment jurisprudence in a
variety of criminal investigative procedures, Minnesota Statute 299C.105 was
enacted following debate and deliberation by the Minnesota Legislature. See RB
at 19-20 (referencing cases holding the Minnesota Constitution provides greater
protections related to searches incident to arrest, dog sniff situations, DWI road
blocks, motor vehicle passenger and social guest protections). All of the decisions
where this Court found Fourth Amendment jurisprudence is insufficient to
10
protect the rights and liberties of Minnesotans involved actions of the executive
branch rather than a decision by the legislature.
As elected representatives the Minnesota Legislature, in performance of its
legislative function reflects the history, traditions, and views of the people. In
enacting Minn. Stat. §299C.105 the legislature carefully weighed the
reasonableness of requiring individuals arrested of serious enumerated felony
offenses to provide a DNA sample by way of a buccal swab outweighed any
minimal privacy interests of those individuals. The same principals this Court
used to hold that the minimal intrusiveness of a buccal swab to collect DNA for
identification purposes in Bartylla, Johnson, and In Re M.L.M., should apply here.
To hold to the contrary would circumvent the role of the legislature in enacting
laws which reflect its citizens’ history, values and traditions.
Most recently this Court has found that requiring individuals to provide a
breath sample is not an unreasonable search incident to arrest under the
Minnesota Constitution. See State v. Bernard, 859 N.W.2d 762, 767. There is “no
unique, distinct, or peculiar issue of state and local concern” that requires
additional protection from the Minnesota Constitution. See State v. McMurray,
860 N.W.2d 868, 692 (Minn. 2015) (internal citations omitted). Section 299C.105
reflects the history, values, traditions, and adequately protects the basic rights
and liberties of Minnesota citizens. This Court should not depart from Fourth
11
Amendment jurisprudence. Sections 299C.105 subd. (1)(a)(1) and (3) are
constitutional under both the Fourth Amendment and Art. I, Section 10 of the
Minnesota Constitution.
II.
Appellant has met criteria for issuance of a writ.
Appellant established the three criteria for issuance of a writ have been
met. The district court exercised judicial power that was not authorized by law
and Appellant sustained an injury for which no adequate remedy is available.
State v. Turner, 550 N.W.2d 622, 625 (Minn. 1996).
A. The district court exceeded its authority in prohibiting
Appellant from taking a DNA sample from Emerson.
Similar to the situations in which a party did not have a full and fair
opportunity be heard and litigate the issue, Appellant is not a party to the
criminal prosecution and was not able to litigate the issue to protect his interests.
See State v. Schnagl, 859 N.W.2d 297 (Minn. 2015); State v. Lemmer, 763 N.W.2d
650 (Minn. 2007). The prosecutor did not have an interest or incentive to protect
Appellant’s booking procedures because the DNA sample was not sought for
purposes of obtaining evidence to be used in the criminal prosecution. The
district court exceeded its authority by addressing the administrative actions of
Appellant in the criminal prosecution of Emerson.
Emerson’s reliance on Minn. R. Crim. P. 11.02 to support his position that
the district court had authority to rule on the constitutionality of Section
12
299C.105 in his criminal prosecution is flawed. Minn. R. Crim. P. 11.02 provides
that “if the prosecutor or defendant demands a hearing under Rule 8.03, the
court must conduct an Omnibus Hearing and hear all motions relating to” a
specified list of evidentiary issues. Rule 8.03 which is incorporated into Rule
11.02, provides for a hearing to be held if a demand is made by the prosecutor or
defendant on the admissibility at trial of “evidence specified in the prosecutor’s
Rule 7.01 notice, or the admissibility of any evidence obtained as a result of the
specified evidence.” Minn. R. Crim. P. 8.03 (emphasis added). As argued infra
and in Appellant’s principle brief, a sample obtained pursuant to Section
299C.105 is not an evidentiary sample. See infra Section V. C. and AB at 7.
Emerson’s reliance on Johnson and M.L.M. to support his assertion that the
district court has subject matter jurisdiction is flawed. Both Johnson and M.L.M.
challenged the constitutionality of taking a DNA sample under Minn. Stat. §
609.117 for certain offenders at the time of sentencing hearings. See Johnson 813
N.W.2d at 3; M.L.M., 813 N.W.2d at 29. A criminal sentence is a direct component
of the criminal prosecution whereas Appellant’s booking procedures are
administrative and not integral to the prosecution of a criminal charge.
Similarly, Emerson’s reliance on State v. Scales, 518 N.W.2d 587 (Minn.
1994) is inapplicable in that Scales addresses the manner in which police obtain
evidence against an individual to be used in a criminal prosecution. Emerson
13
cites no authority for his assertion that the district court had jurisdiction to rule
on his challenge to section 299C.105 in the criminal proceeding.
Finally, Emerson misconstrues this Court’s holding in State v. Lopez, 778
N.W.2d 700 (Minn. 2010). Emerson asserts that Lopez allows district courts in
criminal cases to impose or vacate the “civil consequence” of the registration
requirement. See RB at 29. It does not so hold. Lopez, is a case of statutory
interpretation where this Court held that registration is mandated under Minn.
Stat. §243.166 only where the two offenses arise from one set of circumstances,
meaning that the two charges must be sufficiently linked in time, location,
people, and events – that they must overlap in these criteria. 778 N.W.2d. at 705.
The district court exceeded its authority by sua sponte deciding on the
constitutionality of the statute. Emerson did not raise the issue of the
constitutionality of the statute in his motion to preclude Appellant from taking a
biological sample under Section 299C.105. It is well settled that the party
challenging a statute carries the heavy burden of demonstrating beyond a
reasonable doubt a constitutional violation has occurred. See Hamilton v. Comm’r
of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). The district court exceeded its
authority by failing to allow the parties to fully litigate the issues and
independently raising and deciding the issue.
14
B. Appellant has sustained an injury.
The district court has prohibited Appellant from complying with a
statutory obligation on the basis that the statute is unconstitutional. Appellant
was injured not being a party to the proceedings as well as because he was
unable to litigate the issue ultimately decided by the district court – the
constitutionality of the statute. Because the constitutionality of Section 299C.105
and Appellant’s ability to comply with the his statutory obligations are so
intertwined, Appellant’s inability to comply with his statutory duty, to identify
individuals who are brought to the Dakota County Jail, has no adequate ordinary
remedy.
C. Appellant has no available adequate remedy.
Contrary to Emerson’s contention that Appellant has sufficient remedies
available to him, no such remedy exists. See RB at 28, 34-25. Emerson argues that
Appellant can request an order under Minn. R. Crim. P. 9.02 subd. 2(1). Emerson
confuses the purpose of Rule 9.02 and Section 299C.105. Rule 9 is used to obtain
biological samples that will be used as evidence against the accused in a criminal
prosecution whereas section 299C.105 is used to identify the individual charged
with an enumerated offense. Emerson also argues that “the County can file a
pretrial appeal under Minn. R. Crim. P. 28.04 if identity of the defendant is
critical to the prosecution.” See RB at 34-35. Emerson again confuses the purpose
15
of Minn. R. Crim. P. 9.02 and Section 299C.105. A district court prohibiting
Appellant from complying with the requirements of 299C.105 will not meet the
“critical impact” standard necessary under Minn. R. Crim. P. 28.04 because a
sample obtained under 299C.105 is not an evidentiary sample used for purposes
of proving the underlying criminal offense. Similarly, Minn. R. Civ. App. P. 105
is inapplicable in that it applies to orders not delineated in Minn. R. Civ. App. P.
103.03 which identifies appealable orders in civil proceedings. The only remedy
available to Appellant is a writ under Minn. R. Civ. App. P. 121.
16
CONCLUSION
For the foregoing reasons, this Court should reverse the decision of the
Court of Appeals and find that Section 299C.105 is constitutional under the
Minnesota Constitution and grant Appellant’s request for a writ.
Dated: September 8, 2016
JAMES C. BACKSTROM
DAKOTA COUNTY ATTORNEY
By: /s/Helen R. Brosnahan
James C. Backstrom
Dakota County Attorney
Attorney Registration No. 0003797
Phillip Prokopowicz
Attorney Registration No. 146924
Helen R. Brosnahan
Assistant Dakota County Attorney
Attorney Registration No. 0266887
Dakota County Judicial Center
1560 Highway 55
Hastings, MN 55033
Telephone: (651) 438-4438
[email protected]
Attorneys for Appellant
17
CERTIFICATE OF COMPLIANCE
Helen R. Brosnahan, attorney for Appellant Timothy Leslie, Dakota
County Sheriff, hereby certify that this Brief complies with the
requirements of Minnesota Rule of Civil Appellate Procedure 132. The
Brief was prepared using Microsoft Office Word, font face size 13,
containing 3,590 words. The word count is stated in reliance on Microsoft
Word 2010, the word processing program used to prepare this brief.
The undersigned also certifies that this brief has been scanned for
viruses and is virus-free.
Dated: September 8, 2016.
/s/Helen R. Brosnahan
Helen R. Brosnahan
Assistant County Attorney
18