State of Minnesota, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0325

State of Minnesota,
Appellant,

vs.

Terrell Cavanaugh Griffin,
Respondent.

Filed October 8, 2018
Reversed and remanded
Ross, Judge

Hennepin County District Court
File No. 27-CR-15-22152

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, David S. Bernstein, Assistant City Attorney,
Minneapolis, Minnesota (for appellant)

Mary F. Moriarty, Hennepin County Public Defender, Geoffrey Isaacman, Assistant Public
Defender, Minneapolis, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Reyes, Judge; and Kalitowski,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
ROSS, Judge
A state trooper arrested Terrell Griffin for driving under the influence of a controlled
substance. Griffin agreed to provide a urine sample to be tested for drugs after the trooper
read him the implied-consent advisory stating that refusing to submit to a chemical test is
a crime. The district court suppressed the test results before trial based on the Due Process
Clause, relying on McDonnell v. Commissioner of Public Safety, 473 N.W.2d 848
(Minn. 1991), because the refusal-is-a-crime warning had by then been held to be
inaccurate due to its constitutional unenforceability. We reverse the due-process decision
because Griffin did not allege and the district court did not find that the inaccuracy led him
to agree to take the urine test. We remand for the district court to address Griffin’s
alternative argument that the Fourth Amendment requires suppression of the test results as
the fruit of a warrantless search.
FACTS
A state trooper stopped Terrell Griffin’s van and arrested him , suspecting he was
driving under the influence of a controlled substance. The trooper read Griffin the implied-
consent advisory, which informed Griffin that refusing to take a chemical test is a crime.
He gave Griffin the choice of a blood test or a urine test, and Griffin agreed to a urine test.
The test results led the state to charge Griffin with two counts of driving while impaired
and one count of careless driving.
Griffin moved the district court to suppress evidence of the test results, offering two
theories. He argued first that his due-process rights were violated because the implied-
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consent advisory’s warning about criminal prosecution for refusing a blood or urine test is
now constitutionally unenforceable and therefore inaccurate and misleading. He argued
second that the results are the fruit of an unconstitutional, warrantless search under the
Fourth Amendment. The state argued that the district court should deny the motion by
analyzing Griffin’s challenge only under a Fourth Amendment framework, not the Due
Process Clause. It urged the district court to conclude either that Griffin consented to the
test so as to meet a recognized exception to the warrant requirement or that the trooper’s
reading of the advisory falls under the good-faith exception to the exclusionary rule
because the advisory had been accurate when the trooper read it to Griffin.
The district court suppressed the test results . It reasoned that the implied-consent
advisory was rendered retroactively inaccurate by constitutional decisions issued after
Griffin’s arrest. It concluded that “[c]ontinuation of this case using evidence obtained from
a warrantless search . . . results in a violation of [Griffin’s] due process right to be free of
unreasonable searches and seizures.”
The state appeals the pretrial order suppressing the test-result evidence.
D E C I S I O N
The state argues that the district court improperly applied a due-process analysis
instead of a Fourth Amendment analysis to Griffin’s suppression motion. We stayed the
state’s appeal pending decisions by the Minnesota Supreme Court in Morehouse v.
Commissioner of Public Safety, 911 N.W.2d 503 (Minn. 2018), and Johnson v.
Commissioner of Public Safety, 911 N.W.2d 506 (Minn. 2018). Neither case decided the
question of whether the Fourth Amendment or due process under McDonnell provides the
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proper framework for determining the constitutionality of a search performed after an
implied-consent advisory that was accurate when given but later rendered inaccurate. For
reasons that follow, the Morehouse decision nevertheless resolves this appeal.
Because this is a pretrial appeal by the state , we first must decide whether the
suppression of Griffin’s urine-test results will have a critical impact on the case. This is
because we will not review an alleged pretrial error against the state unless the state
establishes that the alleged error will have a critical impact on the outcome of a trial if it is
not reversed. Minn. R. Crim. P. 28.04, subd. 2. An error critically impacts a trial’s outcome
if it significantly reduces the likelihood of a conviction. State v. Aubid, 591 N.W.2d 472,
477 (Minn. 1999). Griffin faces two counts of driving while impaired by a controlled
substance, and one count of careless driving. One of the driving-while-impaired counts
requires proof that Griffin was under the influence of any controlled substance, and the
other requires proof that his body contained any amount of a statutorily specified controlled
substance. Minn. Stat. § 169A.20, subd. 1(2), (7) (2014). Not being able to present the
urine-test results makes it significantly unlikely that the state could prove that Griffin’s
body contained a controlled substance. The alleged pretrial error in suppressing evidence
of those results would therefore critically impact a trial. We turn to the merits of the appeal.
The state’s threshold contention is that Griffin’s evidence-suppression motion must
be decided under a Fourth Amend ment analysis rather than a due-process analysis. This
court has stated the opposite: “If a person challenges the accuracy of an implied -consent
advisory as a violation of due process, the claim should be analyzed under the Due Process
Clause, consistent with Minnesota precedent.” Johnson v. Comm’r of Pub. Safety, 887
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N.W.2d 281, 283 (Minn. App. 2016), rev’d, 911 N.W.2d 506 (Minn. 2018). Applying this
general holding, the Johnson court concluded that, “[b]y providing the inaccurate advisory,
the state misinformed Johnson regarding the potential penalty for refusing to submit to a
urine test and violated his right to due process, as established in McDonnell.” Id. at 295.
But the supreme court reversed this court’s decision in Johnson that the advisory violated
his due-process rights under McDonnell because Johnson refused to submit to testing and
McDonnell recognized a driver’s due-process right not to have his license revoked based
on an inaccurate advisory only “when the driver submitted to testing.” Johnson, 911
N.W.2d at 509.
The parties here have assumed that our general holding in Johnson about the
propriety of a due-process analysis is undermined by the reversal. This is an uncertain
assumption. In reversing, the Johnson supreme court had no occasion to address this court’s
comprehensive statement that when a person makes a due-process challenge to an implied-
consent advisory, the Due Process Clause rather than the Fourth Amendment provides the
analytical framework to address the challenge. On one hand, one might maintain that the
reversal undermines only the section of our Johnson opinion that was rejected expressly
by the supreme court, which was not our declaration that a McDonnell due-process theory
is available in the implied-consent setting but, rather, our case-specific holding that
Johnson satisfied the elements of a McDonnell claim. But on the other hand, one might
maintain that a premise in our Johnson decision that a McDonnell due-process theory is
available generally in the implied-consent setting was implicitly rejected by Morehouse,
the companion opinion released contemporaneously with the Johnson reversal. Our
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premise was that a McDonnell claim invokes procedural rather than substantive due
process, a distinction that bears on whether the Fourth Amendment is the better analytical
source. Johnson, 887 N.W.2d at 285. But the Morehouse court suggested otherwise. It said,
“The district court did not address Morehouse’s argument, made under McDonnell . . . ,
that the legal inaccuracy of the implied consent advisory violated his substantive due
process rights.” Morehouse, 911 N.W.2d at 504 (emphasis added). The Morehouse court
added in a footnote, “For the first time in this litigation, Morehouse raises a procedural due
process challenge to his license revocation in his brief to this court. . . . [W]e do not address
whether the circumstances here violated procedural due process.” Id. at 505 n.3. The
Morehouse court therefore indicates that a McDonnell claim is one of substantive rather
than procedural due process.
For our purposes, however, we need not decide whether a McDonnell claim is
substantive or procedural, nor whether our holding in Johnson about the priority between
a due-process analysis and a Fourth Amendment analysis remains precedential. The
supreme court’s reasoning in Johnson and Morehouse renders these issues unnecessary to
our decision. Both cases confirm that an inaccurate implied-consent advisory supports a
due-process claim only when the inaccuracy actually caused the driver to submit to the
chemical test. Johnson, 911 N.W.2d at 509 (“What we recognized in McDonnell was a due
process violation in revoking a driver’s license when the driver submitted to testing because
the implied consent advisory inaccurately stated that refusing to submit to testing was a
crime.”); Morehouse, 911 N.W.2d at 505 (rejecting driver’s McDonnell due-process
argument because the driver failed to establish that he submitted to testing because of the
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inaccurate implied-consent advisory) . A valid due-process claim therefore requires more
than just an identified inaccuracy in the advisory; it requires a causal link between the
inaccuracy and the driver’s decision to test. Here Griffin did not argue to the district court
that he submitted to the test because of the inaccurate part of the advisory, and the district
court did not find that he did. Griffin argued instead, and the district court reasoned, that
the existence of the inaccuracy alone required it to suppress the test results. Guided by
Morehouse, Johnson, and McDonnell, we must reject this bright-line approach and hold
that the inaccuracy did not create a due-process violation unless Griffin actually relied on
it.
The state argues that Griffin’s due-process claim fails because he did not actually
rely on the advisory’s inaccurate threat of a criminal charge when he submitted to the urine
test. The supreme court rejected Morehouse’s due-process argument because “the district
court did not find, nor did Morehouse claim, that he prejudicially relied on the implied
consent advisory in deciding to submit to the test.” Morehouse, 911 N.W.2d at 505. Griffin
is in the same situation as Morehouse. A driver who submits to testing for reasons other
than the inaccurate advisory has suffered no harm, let alone constitutionally significant
harm, from the inaccuracy. Because the district court did not find, and Griffin did not claim,
that he actually relied on the advisory when he decided to take the urine test, we must
reverse.
Griffin creatively argues for a different result despite Morehouse. He beads together
a thread of loose inferences to contend that proof that a driver took the test because he
relied on the advisory is necessary to support a McDonnell due-process claim only in
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license-revocation appeals (like Morehouse, Johnson, and McDonnell), but not in a
criminal appeal (like this one). That is, in a cri minal-charge appeal after the driver
submitted to a test, unlike a license-revocation appeal after the driver submitted to a test,
courts must presume (apparently irrebuttably) that the driver prejudicially relied on the
inaccurate advisory as a matter of law and suppress the test results. This is so, Griffin offers,
because McDonnell discussed a driver’s choice between the “less onerous” license
revocation and an impliedly more onerous criminal conviction. See McDonnell, 473
N.W.2d at 854. From that discussion in McDonnell, Griffin supposes that a driver who
submits to testing but later challenges the results in a license-revocation proceeding has
shown only his concern about losing his license but not about being charged with a crime.
He infers that this driver’s lack of demonstrated concern for being charged with a crime is
the reason the Morehouse court rejected the appellant’s McDonnell due-process claim for
failing to show that he actually relied on the threat of a criminal charge. Griffin says that
the Morehouse appellant “appears to have ignored” the criminal consequences of his choice
to submit to testing (the test results) and focused only on the license-revocation
consequences, as evidenced by the nature of his challenge. But a driver who, like Grif fin,
instead submitted to testing and then challenged the results in a criminal proceeding has,
by the nature of his challenge, shown his concern about being convicted of a criminal
charge. In other words, courts must conclude —without receiving any evidence, claim, or
argument—that the same purpose to avoid a potential criminal conviction motivating a
driver to challenge his test results must have also motivated that driver to take the test in
the first place. The argument at its core insists that we specul ate about the rationale
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motivating supreme court precedent in order to speculate about the rationale motivating
drivers who submit to chemical testing. Unconvinced, we will instead follow Morehouse
and not presume that Griffin prejudicially relied on the advisory’s inaccurate warning.
Our holding that Griffin’s due-process argument fails under Morehouse leads us to
his yet unresolved, alternative argument that the Fourth Amendment requires the district
court to suppress the test results because those results arose from a warrantless search. We
do not consider issues that were presented to but not decided by the district court. State v.
Lemmer, 736 N.W.2d 650, 656 (Minn. 2007). The district court did not address this
argument or the merits of the state’s counterarguments that Griffin’s consent constituted a
valid exception to the warrant requirement and that a good-faith exception prevent s
exclusionary-rule suppression. We therefore will not decide the parties’ Fourth
Amendment arguments. We reverse the district court’s due- process decision and remand
the case for further proceedings.
Reversed and remanded.