Darrell Evans Fulks, petitioner, Respondent, vs. State of Minnesota, Appellant.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1511
Darrell Evans Fulks, petitioner,
Respondent,
vs.
State of Minnesota,
Appellant.
Filed September 7, 2021
Affirmed
Bratvold, Judge
Ramsey County District Court
File No. 62-CR-13-6046
Mark D. Nyvold, Fridley, Minnesota (for respondent)
Keith Ellison, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant Cou nty Attorney,
St. Paul, Minnesota (for appellant)
Considered and decided by Bratvold, Presiding Judge; Connolly , Judge; and
Hooten, Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this appeal from a district court order granting postconviction relief and vacating
respondent’s conviction for first-degree refusal to submit to a chemical test, appellant
argues that the district court erred. We first conclude that the district court did not abuse its
2
discretion by determining that, under Fagin v. State, 933 N.W.2d 774 (Minn. 2019) ,
appellant failed to plead with sufficient detail the exigent circumstances that justified a
warrantless search of respondent’s blood or urine. Even if we assume that appellant’s
pleading was sufficiently detailed, we next conclude that the district court did not err by
concluding respondent met his burden of proving no exigency existed at the time of his
arrest. Thus, a warrantless search of respondent’s blood and urine was not justified, and we
affirm.
FACTS
Offense and conviction

The following summarizes the relevant facts from the postconviction order, most of
which are undisputed. On August 15, 2013, at around 2:05 a.m., a Minnesota State Patrol
trooper stopped a black SUV on I-94 in St. Paul, travelling eastbound at 75 miles per hour
in a 55-mile-per-hour zone. The trooper identified the driver as respondent Darrell Evans
Fulks. The trooper noted an odor of alcohol coming from Fulks, who failed field sobriety
tests. Fulks admitted he had consumed three beers and smoked marijuana a few hours
before driving. Fulks refused a preliminary breath test. The trooper arrested Fulks and
transported him directly to the Ramsey County Detention Center.
At 2:48 a.m., the trooper read Fulks the implied-consent ad visory. Fulks asked to
speak with an attorney. The trooper provided a phone and phone books, and at 2:57 a.m.,
Fulks stated he was finished. The trooper asked if Fulks would submit to a blood or urine
test and Fulks refused.
3
The appellant State of Minnesot a charged Fulks with first-degree driving while
impaired—refusal to submit to a chemical test. 1 After reaching an agreement with the state,
Fulks pleaded guilty in September 2014 to refusal to submit to a chemical test. On
January 12, 2015, the district court sentenced Fulks to 84 months in prison with a five-year
conditional-release period after confinement. Fulks did not appeal.
Postconviction petition

On February 21, 2019, Fulks petitioned for postconviction relief requesting that his
test-refusal conviction be vacated as unconstitutional. Fulks argued that the state lacked a
warrant to obtain his blood or urine and no exception to the warrant requirement applied,
relying on Johnson v. State, 916 N.W.2d 674, 684 (Minn. 2018) (Johnson I).2 The state
opposed his petition and argued that exigent circumstances excused the warrant
requirement. After an evidentiary hearing in May 2019, the district court granted Fulks’s
petition, concluding that the state failed to prove that an exigency existed at the time of
Fulks’s arrest. The state appealed.

1 The state also charged Fulks with first-degree driving while impaired, operating a motor
vehicle under the influence of alcohol (count two), and theft of a motor vehicle
(count three). In the plea agreement, Fulks agreed to plead guilty to the test-refusal offense
and to count three. The state agreed to dismiss count two. T he district court imposed a
27-month prison sentence for count three, served concurrently with his sentence for the
test-refusal conviction.

2 As discussed below, Johnson I held that th e “Birchfield rule” applies retroactively.
916 N.W.2d at 684. Johnson I explained that the Birchfield rule arose from State v. Trahan,
886 N.W.2d 216 (Minn. 2016), State v. Thompson, 886 N.W.2d 224 (Minn. 2016), and
Birchfield v. North Dakota, 136 S. Ct. 2160, 2185-86 (2016) . Taken together, these three
opinions held that the state cannot prosecute a test-refusal charge for failing to take a blood
or urine test unless the state obtained a warrant or an exception to the warrant requirement
applied. Johnson I, 916 N.W.2d at 679.
4
First appeal and remand

In May 2020, this court reversed and remanded the district court’s order granting
postconviction relief, determining that the district court erred when it placed the burden on
the state to prove that an exception to the warrant requirement justified the warrantless
search of Fulks’s blood and urine. Fulks v. State, No. A19-1123 (Minn. App. May 21,
2020) (order op.). We relied on Fagin v. State, 933 N.W.2d 774, which was issued while
the state’s appeal was pending. Fagin held that the petitioner has the burden to prove that
no warrant existed and none of the exceptions to the warrant requirement applied. Id. at
779-80.
In September 2020, the district court held a second evidentiary hearing. The district
court received one piece of evidence by stipulation of the parties: an affidavit of the
arresting trooper. The trooper averred that “[a]t no time did I request a search warrant,”
“[n]othing prevented me from attempting to obtain a search warrant,” and “[i]t did not
occur to me to get a search warrant.” In response to questions from the court, t he state
argued that it pleaded the exigency “with specificity; namely, that this event happened in
the middle of the night, there was a two-hour window, and that at the time of the refusal,
there was only one hour left.” The state relied on Minn. Stat. § 169A.20, subd. 1(5) (2012),
which requires the state to prove that defendant’s alcohol concentration exceeded the legal
limit within two hours of driving. Fulks argued that no exigent circumstances existed
because the state could have obtained a warrant.
The district court granted Fulks’s postconviction petition and vacated his
test-refusal conviction. The district court first determined that the state failed to plead the
5
exigency in sufficient detail. The district court then considered the circumstances
surrounding the warrantless search and found that “Fulks was stopped at 2:05AM and
refused to volunta rily submit to a test at 2:57AM. This gave [the trooper] approximately
68 minutes to obtain a warrant within the two-hour window. Sixty-eight minutes is
sufficient time to obtain a warrant.” The district court finally determined that “under the
circumstances here, Fulks has established by a preponderance of evidence that a judge
would have been available, and a telephonic warrant could have been obtained without
much delay and without undermining the efficacy of the search.” The district court
concluded, “Because law enforcement did not obtain a warrant and exigent circumstances
were not present, any search of Fulks’s blood or urine was unconstitutional under the
Fourth Amendment to the United States Constitution and Article I, Section 10 of the
Minnesota Constitution.”
The state appeals.
DECISION
The state argues that the district court “abused its discretion in vacating respondent’s
test-refusal conviction because Fulks failed to submit any evidence to satisfy his burden to
prove the lack of exigent circumstances.” Fulks argues that the record “supports, factually
and legally, the District Court’s findings and conclusion that sufficient time existed to
obtain a warrant, and no exigency existed.” Fulks also contends that the evidence shows
that “no warrant was ever going to be sought making it irrelevant whether a warrant could
have been obtained within 68 minutes, or any other period of time.”
6
Appellate courts review the district court’s decision to grant or deny a petition for
postconviction relie f for an abuse of discretion. Fagin, 933 N.W.2d at 777. A ppellate
courts review the district court’s factual findings under the clearly erroneous standard, and
its legal conclusions de novo. Id.; State v. Stavish, 868 N.W.2d 670, 677 (Minn. 2015). In
particular, appellate courts review a district court’s “ultimate determination of exigency de
novo.” Stavish, 868 N.W.2d at 677.
Before analyzing the district court’s reasons for granting relief, we begin by
summarizing the relevant law. Calling it the “Birchfield rule,” the Minnesota Supreme
Court held that “in the DWI context, the State may not criminalize refusal of a blood or a
urine test absent a search warrant or a showing that a valid exception to the warrant
requirement applies.” Johnson I, 916 N.W.2d at 679 (citing Birchfield, 136 S. Ct. at
2185-86 (2016)). Johnson I determined that the “Birchfield rule” is substantive and
applies retroactively to criminal defendants’ convictions on collateral review. Id. at 684.
This means that although Fulks was convicted in 2013, well before the Birchfield rule was
articulated, the rule applies to his conviction.
The Birchfield rule has led to many postconviction petitions that, like Fulks’s
petition, challenge the validity of a test-refusal conviction. Fagin set out the procedural and
pleading standards that apply to a postconviction petition based on the Birchfield rule.
Fagin, 933 N.W.2d at 780-81. The petitioner first must affirmatively allege that no search
warrant was issued and that (at least upon information or belief) no warrant exception
applied. Id. at 780. If the petitioner satisfies this requirement, then the burden shifts to the
state, which must “admit or deny the existence of a warrant,” and if no warrant was issued,
7
“shall admit the lack of an exception or, alternatively, state specifically the exception relied
on and the grounds for the State’s reliance. The exception and its grounds must be pleaded
in sufficient detail to give the petitioner adequate notice of the State’s position.” Id. The
district court must then hold an evidentiary hearing, unless the record shows the petitioner
is not entitled to relief. Id. at 781. At the evidentiary hearing, the petitioner must prove that
no warrant exception applied “by a fair preponderance of the evidence.” Id. at 779
(quotation omitted); see Minn. Stat. § 590.04, subd. 3 (2020).
Here, the parties dispute whether exigent circumstances supported a warrantless
search of Fulks’s blood. To determine whether an exigency justified a warrantless search,
courts examine the totality of the circumstances. Trahan, 886 N.W.2d at 222. Caselaw has
specifically addressed whether the dissipation of alcohol over time provides exigent
circumstances that justify a warrantless search. “[W]hile the natural dissipation of alcohol
in the blood may support a finding of exigency in a specif ic case, . . . it does not do so
categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable
must be determined case by case based on the totality of the circumstances.” Missouri v.
McNeely, 569 U.S. 141, 156 (2013).3

3 The Minnesota Supreme Court has also held that “alcohol dissipation, by itself, is not ‘an
exigency in every case sufficient to justify conducting a blood test without a warrant.’”
Johnson v. State, 956 N.W.2d 618, 621 (Minn. 2021) (Johnson II) (quoting McNealy,
569 U.S. at 165).
Johnson II also held that the rule announced in McNeely —that the natural
dissipation of alcohol in a suspect’s blood stream is not a single factor, per se exigent
circumstance—is procedural and does not apply retroactively on collateral review of final
test-refusal convictions. 956 N.W.2d at 626 -27. The state concedes that Johnson II is
inapplicable to Fulks’s claim. McNeely was decided before Fulks’s driving conduct and
subsequent test-refusal; therefore, McNeely, and not Johnson II, applies to Fulks’s petition.
8
In McNeely, t he Supreme Court identified a variety of circumstances that may
establish an exigency sufficient to justify a warrantless search, such as emergency
assistance to an endangered person, ‘hot pursuit’ of a fleeing suspect, or entry of a burning
building to put out a fire and investigate its cause. Id. at 149. McNeely stated a two-step
test to determine whether exigent circumstances support a warrantless search: “While these
contexts do not necessarily involve equivalent dangers, in each a warrantless search is
potentially reasonable because there is [1] compelling need for official action and [2] no
time to secure a warrant.” Id. (quotation omitted). In Mitchell v. Wisconsin, the Supreme
Court the court explained that the second step of the exigency test —no time to secure a
warrant—is established when “(1) BAC evidence is dissipating and (2) some other factor
creates pressing health, safety, or law enforcement needs that would take priority over a
warrant application.” 139 S. Ct. 2525, 2537, 2539 (2019) (holding exigent circumstances
“almost always” support a warrantless blood test of an unconscious driver where police
have probable cause of drunk driving).
4
With this background in mind, we turn to the parties’ arguments.

4 Mitchell determined that there is a compelling need for blood-alcohol testing for reasons
that generally apply to most, if not all, alcohol-related driving arrests: because highway
safety is a vital public interest, alcohol limits in our criminal law promote highway safety,
and enforcing those criminal laws requires a test “that is accurate enough to stand up in
court.” Id. at 2535-2536. In this appeal, the parties do not discuss the compelling-need step
of the exigency test, so this opinion does not consider it further.
9
A. The district court did not err by determining that the state failed to plead
exigency with specificity.

Fulks’s petition affirmatively alleged that no search warrant was issued, and no
warrant exception applied. The state conceded that no warrant was issued and argued that
an exigency existed and circumstances supported a warrantless search. “Specifically,” the
state pleaded, “the record does not show that the arresting police officer had the ability to
obtain a warrant within a reasonable amount of time given that petitioner’s driving conduct
occurred shortly after 2:00 am on August 15, 2013.”
5
The district court’s order granting Fulks’s petition stated:
Consistent with Fagin, Fulks alleged no warrant was obtained
and no exigent circumstances existed. The State’s response
admits the lack of a warrant but identified exigent
circumstances as the exception upon which they would rely.

In a footnote, the district court explained that the state’s pleading articulated no factual
basis to plead the existence of a warrant exception; the state “simply chose to identify one
rather than plead with specificity.”

5 At the evidentiary hearing, the district court asked the prosecuting attorney to articulate
the grounds for the exigency. The district court asked on what the prosecuting attorney
based its assertion that “one hour is [an] insufficient amount of time to obtain a warrant,”
and the prosecuting attorney responded, “Um, it’s a good question.” The district court
asked, “if . . . something might come up that will prevent you from getting a warrant, that
creates exigent circumstances? . . . Not knowing what it might be?” The prosecuting
attorney responded, “No.” The district court specifically asked whether there was a fire,
whether there was a power outage, and whether the trooper had a phone. The prosecuting
attorney acknowledged there was no fire, no outage, and that the trooper had a phone. But
the prosecuting attorney argued there was an exigency because “this event happened in the
middle of the night, there was a two-hour window, and that at the time of the refusal, there
was only one hour left.”
10
On appeal, the state argues in its brief to this court that the district court “erred by
concluding that the State failed to articulate any basis for pleading exigency.” The state
contends that it sufficiently pleaded these grounds: “the driving conduct occurred in the
middle of the night; at the time of the refusal, there was only a little over an hour to obtain
a warrant; and the record did not show that [the trooper] could have obtained a warrant in
a reasonable amount of time.” The state concludes, “These grounds were sufficient to show
that an exigency may have existed, which is all that Fagin requires.”
The supreme court in Fagin cautioned against the state positing exceptions to the
warrant requirement that lack explanation and thereby force a petitioner to disprove the
existence of an exception in the abstract:
[W]e acknowledge that the petitioner must prove two
negatives: no warrant and no exception. Proving the lack of a
warrant is easy enough . . . . But proving the lack of a warrant
exception may be more difficult, particularly if the State stands
silent . . . or invokes an exception with no explanation
whatsoever. Allowing the State to stand silent in this unusual
context would be contrary to our longstanding jurisprudence
that equity is an important component of postconviction relief.

Fagin, 933 N.W.2d at 780 (emphasis added) (quotation omitted). Fagin held that “[t]he
exception and its grounds must be pleaded in sufficient detail to give the petitioner
adequate notice of the State’s position.” Id.
Here, in response to Fulks’s petition, the state invoked the exigent-circumstances
exception but only alleged that “the record does not show that the arresting police officer
had the ability to obtain a warrant within a reasonable amount of time given that petitioner’s
driving conduct occurred shortly after 2:00 am on August 15, 2013.” The state later
11
identified more specific circumstances in its brief on appeal—the incident occurred in the
middle of the night; when Fulks refused, there was just over an hour to obtain a warrant;
and the record did not show the trooper could have obtained a warrant within that
timeframe. We doubt that the state should be allowed, on appeal, to supplement the
circumstances alleged to support an exception to the warrant requirement. See id.; Roby v.
State, 547 N.W.2d 354, 357 (Minn. 1996).
More fundamentally, we are aware of n o existing caselaw that recognizes the
circumstances that the state claims created an exigency at the time of Fulks’s arrest, and
the state cites no precedent for support.6 Mitchell held that exigency supports a warrantless
search when (1) alcohol evidence is dissipating “and (2) some other factor creates pressing
health, safety, or law enforcement needs that would take priority over a warrant
application.” 139 S. Ct. at 2537 (emphasis added). Here, the state failed to plead “some
other factor” creating a “pressing” need that took “priority over a warrant application” at
the time of Fulks’s arrest. See id. Thus, we conclude that the state did not plead the grounds
for the exigency with sufficient specificity, as required by Fagin. 933 N.W.2d at 780.
Because the state failed to plead an exigency sufficient to excuse the warrant
requirement, the district court did not abuse its discretion by granting relief. But even if we
assume the sufficiency of the state’s pleadings in response to Fulks’s petition, we then

6 The state relies on several unpublished and nonprecedential opinions by this court.
Unpublished and nonprecedential opinions are not binding. Minn. R. Civ. App. P. 136.02,
subd. 1(c). And we do not find the cited opinions helpful or persuasive.
12
consider the district court’s second reason, which is an independent basis for granting
relief.
B. The district court did not err by determining that Fulks met his burden
to prove no exigent circumstances justified a warrantless search at the
time of his arrest.

The district court determined that Fulks met his burden of proof after accepting the
state’s argument that 68 minutes remained when Fulks refused a blood and urine test. The
district court found that 68 minutes was “sufficient time to obtain a warrant” because there
are judges on call in Ramsey County every night, Minnesota provides a “fully-functioning”
system for issuing telephone warrants, the trooper had a phone, there was not a power
outage in the area at the time, and Fulks was in custody and available for testing. The
district court relied on the arresting trooper’s affidavit, which stated that “[n]othing
prevented [him] from attempting to obtain a search warrant.”
The state argues that there is no record evidence establishing that 68 minutes was
sufficient to obtain a warrant, and thus the district court’s finding is clear ly erroneous.
Fulks responds that he proved the availability of telephone warrants at the time of his arrest,
judges were on call, and he was “in custody the entire time and so his availability for testing
was clear. He was fully available.”
The supreme court’s analysis of the exigent-circumstances exception in Stavish and
Trahan guides our analysis of th is record. In Stavish, the defendant was charged with
driving under the influence of alcohol and causing an accident that led to a passenger’s
death. Stavish, 868 N.W.2d at 672-73. After the accident, the defendant was taken to a
hospital and, before being transported to another hospital for emergency treatment, the
13
arresting officer, without a warrant, obtained a blood sample revealing an alcohol
concentration above the legal limit. Id. at 673. The district court granted the defendant’s
motion to suppress the test results, and the state appealed. Id. at 674. The issue before the
supreme court was whether the warrantless blood draw violated the defendant’s Fourth
Amendment rights and required suppression of the test results. Id. at 674.
The supreme court reasoned that because the defendant had sustained serious
injuries that required treatment at another hospital, his medical condition and need for
treatment rendered his future availability for a blood draw uncertain. Id. at 678. The
supreme court held that “the seriousness and uncertainty of Stavish’s medical condition,
coupled with the possibility of transport to another hospital, made it impossible for [the
officer] to know how long Stavish would be available for a blood draw. Thus, [the officer]
was faced with an emergency situation . . . .” Id. at 680. The supreme court upheld the
warrantless search. Id.
On the other hand, in Trahan, the supreme court rejected the state’s position that an
exigency justified the warrantless search. 886 N.W.2d at 223 . The officer stopped the
defendant at 12:34 a.m., arrested him for driving under the influence of alcohol, and
brought him to a nearby jail. Id. at 219. Around 1:53 a.m., the officer requested a blood or
urine test, and the defendant provided a urine test. Id. Believing the defendant tampered
with the test, the officer asked him to submit to a blood test, which he refused. Id. The
defendant pleaded guilty to first-degree test refusal, but sought to withdraw his plea
14
through postconviction proceedings. Id. at 220. The district court denied relief. Id.7
Ultimately, the issue before the supreme court was whether an exigency justified a
warrantless search so as to make the defendant’s test-refusal conviction constitutional. Id.
at 221.
The supreme court concluded that “the circumstances presented here convince[] us
that there was no exigency.” Id. at 222. The defendant was in custody and immediately
accessible to police, and “if blood were to be drawn, officers would have had to transport
[the defendant] to a hospital to have his blood drawn . . . , meaning that there would have
been some delay during which law enforcement could have attempted to secure a warrant.”
Id. at 222-23. The supreme court rejected a warrantless search and held the test-refusal
statute was unconstitutional as applied to the defendant. Id. at 224.
Trahan and Stavish support the district court ’s determination that Fulks met his
burden to prove that no exigency excused a warrantless search at the time of his arrest.
Like the defendant in Trahan, Fulks was in custody and fully available to law enforcement,
and the trooper could have sought a warrant before the two-hour statutory window expired.
Indeed, during the hearing, the district court asked whether the state agreed that Fulks was
available for testing, and the prosecuting attorney responded, “I believe so.” Unlike in
Stavish, there was no uncertainty about Fulks’s availability for testing or a medical delay
that threatened destruction of evidence. In short, as the caselaw discussed above requires,

7 In the first phase of the appeal, this court affirmed the district court. Id. The supreme court
reversed and remanded to this court for further review in light of new caselaw; on remand,
we reversed Trahan’s conviction. 886 N.W.2d at 219.
15
Fulks established that no “other factor” created a “pressing health, safety, or law
enforcement need[] that would take priority over a warrant application.” See Mitchell,
139 S. Ct. at 2537.
The state argues the district court erred by finding that judges were available during
the hours after Fulks’s arrest to issue telephone warrants and that the state was thereby
prejudiced. The state also argues that district court erred by taking judicial notice that “there
is always a judge available to review a warrant.” 8 It is true that no record evidence
establishes how long it takes to get a telephon e warrant nor whether a judge was actually
on call to sign a warrant on the night of Fulks’s arrest. 9 Still, it is undisputed that
Minnesota has established a process for obtaining telephone search warrants at any time,
as set out in Minn. Stat. §§ 626.05 to 626.22 (2020) and Minn. R. Crim. P. 36. More
importantly, caselaw does not suggests that the availability of a judge or magistrate to sign
a telephone warrant creates an exigency that justifies a warrantless search.
Finally, the trooper’s affidavit stated that “[n]othing prevented [him] from
attempting to obtain a search warrant.” The state stipulated to admission of the affidavit

8 We need not decide the judicial-notice issue because any error was harmless. See Minn.
R. Crim. P. 31.01 (harmless errors “must be disregarded”). The issue was foreclosed by
the trooper’s affidavit, which stated that nothing prevented him from obtaining a warrant.

9 The state argues on appeal that Fulks failed to prove that an “on-call judge was available
to issue a warrant precisely between 3 and 4 a.m. (or if that judge was occupied with a
personal emergency, or busy with other warrant requests)” and that therefore an exi gency
existed. This argument focuses on the availability of a particular judge to sign the warrant,
but this exigency was not identified in the state’s responsive pleadings, thus, we do not
consider the argument. Fagin, 933 N.W.2d at 780; Roby, 547 N.W.2d at 357. Asking Fulks
to disprove the state’s theories as they are developed on appeal contravenes Fagin’s
warning that “equity is an important component of postconviction relief.” Id.
16
and cannot challenge its accuracy or validity. Accordingly, the record evidence supports
the district court’s inference that a warrant was obtainable within 68 minutes. Thus, based
on a fair preponderance of all the record evidence, the district court did not err by
determining that Fulks met his burden of establishing that the exigent circumstances
exception did not excuse a warrant requirement at the time of his arrest.
Affirmed.