Johnson v. StateJohnson v. State
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We are presented with the issue of whether DNA evidence seized pursuant to a court order under a sentencing statute— an order later determined to have misconstrued the meaning of the statute — must be suppressed by virtue of the exclusionary rule. The court of appeals held that the evidence must be suppressed. We reverse.
On September 21, 1992, 17-year-old N.B. was sexually assaulted at knifepoint. The Bureau of Criminal Apprehension (BCA) placed in its database a DNA profile from a vaginal swab it took from the victim. At that time, authorities were unable to link a suspect to the crime. Nearly seven years later, on April 19, 1999, BCA linked the DNA sample to respondent Kevin Johnson.
The DNA sample that linked Johnson to the 1992 sexual assault was taken in 1998 as part of a court order, issued as a condition of probation for Johnson’s part in a 1997 crime.
1
In that case, Johnson was originally charged with first-and third-degree criminal sexual conduct under
Johnson later moved to withdraw his guilty plea in the prostitution scam case, claiming that during the plea bargaining process his attorney did not inform him of his duty to register as a sex offender and that, had he known that he had to register as a sex offender as a condition of his plea, he would not have pleaded guilty. On April 20, 1999, the district court denied Johnson’s motion to withdraw his plea. The court of appeals reversed, holding that the crime of promoting prostitution by fraud did not “arise out of the same set of circumstances” as his original charge and therefore Johnson could not be required to register as a sex offender. State v. Johnson, Nos. C9-99-1046 and CX-99-1265, 2000 WL 365051, at *2 (Minn.App. Apr.11, 2000), rev. denied (Minn. June 13, 2000) (Johnson I).
At a November 13, 2000,
Rasmussen
hearing, Johnson’s attorney made his first appearance in the 1992 sexual assault case. At this appearance, the attorney moved to suppress the 1999 DNA sample taken by Sergeant Martinson pursuant to warrant, but did not object to the 1998 DNA sample taken pursuant to the erroneous district
On November 21, 2001, Johnson brought this claim for postconviction relief in the 1992 sexual assault case. He argued that he was deprived of his right to effective assistance of counsel by the failure of his attorney to file a motion to suppress the first DNA sample that was obtained based on Johnson’s promotion of prostitution by fraud conviction. 5 But for counsel’s deficient performance, Johnson argued, the district court would have suppressed the DNA sample and he would not have pleaded guilty to criminal sexual conduct.
The postconviction court noted that, at the time of the Rasmussen hearing, the court of appeals had already issued its decision in Johnson I, in which it held that Johnson’s prostitution scam conviction did not “arise out of the same set of circumstances” as the original charge against Johnson. Accordingly, the postconviction court concluded that Johnson’s counsel should have moved to suppress the DNA evidence, which had been ordered pursuant to identical statutory language as the registration order in Johnson I. The court also concluded that there was a reasonable probability that Johnson suffered actual prejudice as a result of his attorney’s errors. Therefore, the court vacated Johnson’s plea.
The state appealed, alleging that the postconviction court erred in concluding that the exclusionary rule is applicable when a district court’s erroneous interpretation of a statute led to an unauthorized seizure of DNA evidence. Johnson argued that the state had waived its argument that the exclusionary rule did not apply by failing to raise the issue before the post-conviction court. Although the court of appeals agreed with Johnson’s waiver argument, it noted that the exclusion of the DNA evidence was necessary to provide Johnson with a “meaningful remedy” for the violation of his Fourth Amendment rights. Johnson v. State, 654 N.W.2d 126, 134 (Minn.App.2002) (,Johnson II). We granted review and now reverse.
I.
As a threshold matter, we must decide whether the state waived its argument with respect to the exclusionary rule by failing to raise it before the postconviction court. Generally, an appellate court will not consider arguments that are made for the first time on appeal. State v. Grunig, 660 N.W.2d 134, 136 (Minn.2003). One purpose of this rule is to encourage the development of a factual basis for claims at the district court level. See Grunig, 660 N.W.2d at 137 (discussing Garza v. State, 632 N.W.2d 633, 637 (Minn.2001)). The waiver rule is not absolute, however, and an appellate court may address an issue in the interests of justice if addressing the issue will not work an unfair surprise on a party. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989).
II.
We now consider whether the failure of Johnson’s counsel to move to suppress the DNA evidence deprived Johnson of his Sixth Amendment right to effective assistance of counsel. We review de novo decisions on ineffective assistance of counsel, which involve mixed questions of law and fact. State v. Rhodes, 657 N.W.2d 828, 842 (Minn.2003) (applying de novo review to an appeal of a postconviction ruling). Ineffective assistance of counsel claims require proof of two elements: objective deficiency of counsel and actual prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rhodes, 657 N.W.2d at 842. If either one of these elements is dispositive, the reviewing court need not address both issues. Rhodes, 657 N.W.2d at 842.
A claim of ineffective assistance of counsel may not rest on the failure of an attorney to make a motion that would have been denied if it had been made. State v. Rainer, 502 N.W.2d 784, 788 (Minn.1993) (citing State ex rel. Fruhrman v. Tahash, 275 Minn. 242, 244-45, 146 N.W.2d 174, 176 (1966)). In cases in which the petitioner pleads guilty, the petitioner must demonstrate a reasonable probability that, but for counsel’s ineffective representation, he would not have entered his plea. State v. Ecker, 524 N.W.2d 712, 718 (Minn.1994). On the actual prejudice prong, the reviewing court considers all of the evidence before the district court. Gates v. State, 398 N.W.2d 558, 562 (Minn.1987).
In this case, the actual prejudice prong turns upon whether the district court in the sexual assault case would have granted a motion to suppress the DNA evidence if one had been made. Johnson urges this court to hold that had defense counsel made a motion to suppress the DNA evidence, the court would have applied the exclusionary rule and suppressed the evidence. The state’s position is that Johnson was not prejudiced by defense counsel’s failure to move to suppress because the exclusionary rule should not have been applied to a court-ordered DNA sample.
The Fourth Amendment of the United States Constitution and Article 1, § 10 of the Minnesota Constitution guarantee that a person may not be subjected “to the forced removal of blood for scientific testing in the absence of probable cause and either a search warrant authorizing the intrusion or exigent circumstances excusing the need for a warrant.”
In re Welfare of J.W.K.,
583 N.W.2d 752, 755 (Minn.1998). Minnesota Statutes § 609.3461 directs the court to order offenders convict
In
Johnson I,
the court of appeals interpreted the meaning of the requirement in
The Fourth Amendment contains no provision preventing the admission of evidence obtained as the fruit of an illegal seizure. To give practical effect to the commands of the amendment, the United States Supreme Court crafted the exclusionary rule, an evidentiary rule that prevents the admission of illegally seized evidence. Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (applying the rule to the states); see also State v. Thompson, 273 Minn. 1, 20, 139 N.W.2d 490, 505 (1966). However, we have stated that the exclusionary rule need not be applied rigidly to every situation in which evidence is seized illegally. See State v. Wiberg, 296 N.W.2d 388, 393 (Minn.1980).
We have never before determined whether DNA evidence seized pursuant to a court order — an order later determined to be erroneous — must be suppressed by virtue of the exclusionary rule. We have, however, previously addressed the exclusionary rule in situations in which certain evidence was allegedly obtained in violation of state statutes.
For example, in
State v. Smith
the defendant claimed that welfare authorities provided police with the defendant’s address in violation of the Minnesota Govern
In State v. Lien, we concluded that the police had not made a sufficient showing to justify a nighttime search and the magistrate erred in not requiring a clearer showing of need. State v. Lien, 265 N.W.2d 833, 840 (Minn.1978). Nevertheless, we held that exclusion of the evidence seized pursuant to that warrant was not required. Id. First, we noted that any error in the issuance of the warrant was caused solely by the magistrate. Id. Second, we reasoned that, because the search was executed “at a reasonable hour when most people are still awake” and did not take the defendant by surprise, the purposes of the statutory prerequisites for a nighttime warrant would not be furthered by suppression. Id. at 841.
The considerations involved in Smith and Lien inform our decision today. Although both of those cases involved police activity, the errors in Smith and Lien were committed by civil servants and judicial officers, respectively. See Smith, 367 N.W.2d at 503; Lien, 265 N.W.2d at 840. We noted in both Smith and Lien that allowing the admission of evidence did not frustrate the purposes of the statutes in question. Smith, 367 N.W.2d at 504; Lien, 265 N.W.2d at 841.
In this case, the district court ordered the seizure of Johnson’s DNA based upon its conclusion that a charge of promoting prostitution by fraud was a crime “arising out of the same set of circumstances” as the originally charged crime, thus subjecting Johnson to the requirements of submitting a DNA sample under
Because the exclusionary rule does not apply, we conclude that Johnson did not suffer actual prejudice from his attorney’s failure to move for the suppression of the DNA evidence. As the actual prejudice prong is dispositive, we need not decide
Reversed.
Notes
. Based upon an initial link between this sample and the 1992 sexual assault, Sergeant Bernie Martinson executed a search warrant to take a second blood sample from Johnson on May 5, 1999.
. Johnson admitted to presenting minor T.H.S. as a prostitute under his control in order to lure men into paying him money to have sex with T.H.S. Johnson admitted that he took money from the men but did not allow them to have sex with T.H.S.
.Minnesota Statutes
. The failure of Johnson‘s attorney to object to the 1998 DNA evidence seized pursuant to the district court order is noteworthy because the case file of Johnson’s trial attorney contained multiple notations by Johnson’s appellate attorney in the prostitution scam case that the DNA testing statute should not have applied to Johnson.
. Johnson also argued that the 1999 DNA sample, taken pursuant to a warrant, should have been excluded as the “fruit of the poisonous tree” of the original DNA evidence seized in 1998. See State v. Staats, 658 N.W.2d 207, 211 (Minn.2003).
. Although the court of appeals stated that it did not address the applicability of the exclusionary rule, it discussed the issue extensively in its analysis of the prejudice prong of Strickland. Johnson II, 654 N.W.2d at 133-34.
. In this case we do not reach the question of whether
. We do not adopt the court of appeals’ conclusion that Johnson‘s conviction for promoting prostitution by fraud did not “arise out of the same set of circumstances” as criminal sexual conduct as that issue is not before us.