State v. Heinonen, A16-0229

• Decision Date: 28 March 2018
• Docket Number: A16-0229
• Citation: 909 N.W.2d 584
• Parties: STATE of Minnesota, Respondent, v. Erik John HEINONEN, Appellant.
• Court: Minnesota Supreme Court

909 N.W.2d 584

STATE of Minnesota, Respondent,

v.Erik John HEINONEN, Appellant.

A16-0229

Supreme Court of Minnesota.

Filed: March 28, 2018

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, Tim Sime, Assistant County Attorney, Elk River, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.

Cort C. Holten, Jeffrey D. Bores, Gary K. Luloff, Chestnut Cambronne PA, Minneapolis, Minnesota, for amicus curiae Minnesota Police and Peace Officers Association Legal Defense Fund.

OPINION

CHUTICH, Justice.

This case requires us to decide whether police officers violated an arrestee's Fifth Amendment right when, after the arrestee invoked his privilege against self-incrimination, the officers later asked him if he was willing to sign a written consent to the taking of a DNA sample and explained to him, when questioned, why they sought the sample. Appellant Erik Heinonen moved to suppress the DNA results, as well as the incriminating statements that he made when officers were taking the DNA sample. The district court denied the motion.

Following a jury trial, Heinonen was convicted of two weapons-related offenses, and the court of appeals affirmed. He contends that the officers conducted a second custodial interrogation of him, and therefore did not scrupulously honor his right to remain silent, by (1) requesting his consent to take a DNA sample and (2) explaining to him, when questioned, why they sought the sample. We conclude that the officers did not violate Heinonen's Fifth Amendment privilege against self-incrimination. Although Heinonen's statements that he had already handled the shotgun were incriminating testimonial communications, none of the officers' actions were reasonably likely to elicit an incriminating testimonial communication. And although the officers' request may have been reasonably likely to prompt a suspect to give consent and provide a DNA sample, neither consenting to give a DNA sample nor providing the sample is an incriminating testimonial communication that triggers the Fifth Amendment privilege against self-incrimination. Accordingly, a warning under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was not required and suppression of evidence is not justified. We therefore affirm.

FACTS

In June 2015, law enforcement officers with the Sherburne County Drug Task Force executed a warrant to search a house in Sherburne County. When the officers entered the home, they found Heinonen and two other occupants. In the closet of an upstairs bedroom, the officers discovered a short-barreled shotgun underneath men's clothing. A plastic case with shotgun shells was sitting on the bed, next to a shoebox. The shoebox contained mail that was addressed to Heinonen at the house being searched. Heinonen, a convicted felon, was not permitted to possess a firearm, and the shotgun's barrel length made it too short for anyone to legally possess in Minnesota.

Investigator Sturm asked Heinonen to come out to a squad car to talk. Sturm read Heinonen the warning required by Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).¹ Heinonen declined to speak with Sturm. Sturm understood that Heinonen was invoking his Fifth Amendment privilege against self-incrimination, and Sturm ended the interrogation. Heinonen did not invoke his right to counsel under the Fifth Amendment.² Although Sturm allowed Heinonen to return to the house for a brief time, Heinonen was ultimately arrested and taken to the local jail.

Sturm and his supervisor, Sergeant McLean, approached Heinonen approximately two hours later at the jail. Sturm asked Heinonen if he would sign a written consent to provide a DNA sample. The officers read Heinonen the consent form and then Heinonen signed it. The form contained information about Heinonen's "rights not to have a search made without a search warrant" and his "right to refuse to consent to such a search," but no information regarding Heinonen's privilege against self-incrimination or his right to counsel under the Fifth Amendment. The officers did not reread a Miranda warning.

McLean took the DNA sample from Heinonen using two mouth swabs. While McLean was taking the swabs, Heinonen asked why the officers were taking a DNA sample. McLean replied that they were taking a sample to compare it to DNA found on the shotgun. In response, Heinonen told the officers that "he had already handled the gun." A forensic scientist later determined that Heinonen's DNA profile was consistent with the major male profile developed from the mixture of DNA found in samples taken from the shotgun trigger and slide.

Heinonen was charged with possession of a firearm by an ineligible person and possession of a short-barreled shotgun. See Minn. Stat. § 609.67, subd. 2 (2016) ; § 624.713, subds. 1(2), 2(b) (2016). Before trial, he moved to suppress the DNA evidence and his admission that he had handled the shotgun. According to Heinonen, the officers conducted a second custodial interrogation after he had invoked his privilege against self-incrimination when they asked if he was willing to sign the written consent form and explained to him, when questioned, why they sought the DNA sample. The district court denied the motion. A jury subsequently found Heinonen guilty of both charges.

On appeal, Heinonen renewed his argument that the officers illegally conducted a second custodial interrogation. See State v. Heinonen , 889 N.W.2d 817, 822 (Minn. App. 2017). Relying upon Rhode Island v. Innis , 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the court of appeals disagreed. Heinonen , 889 N.W.2d at 823–24. The court of appeals concluded that the officers could not reasonably have expected that the request for a written consent to take a DNA sample would elicit the incriminating statements that Heinonen made. The court reasoned that (1) the request to search was merely an attempt to obtain consent for a physical test and did not call for any response other than "yes" or "no," and (2) taking a DNA sample was merely a physical test that was not protected by the Fifth Amendment privilege against self-incrimination because providing DNA is not an incriminating testimonial communication. See id. We granted review.

ANALYSIS

The Fifth Amendment guarantees that "no person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V ; Malloy v. Hogan , 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (incorporating Fifth Amendment protections as against the states under the Due Process Clause of the Fourteenth Amendment). This privilege against self-incrimination applies only "when the accused is compelled to make a testimonial communication that is incriminating." Fisher v. United States , 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).

Miranda established procedural safeguards "to secure the privilege against self-incrimination" during custodial interrogations. Miranda , 384 U.S. at 444, 467, 86 S.Ct. 1602 ; State v. Tibiatowski , 590 N.W.2d 305, 308–09 (Minn. 1999). Here, no one disputes that Heinonen was in custody when Sturm and McLean approached him to ask for consent to take a DNA sample. The parties do dispute, however, whether that interaction was an interrogation.

An "interrogation" under Miranda refers to (1) "express questioning" or "any words or actions on the part of the police (other than those normally attendant to arrest and custody)"³ that (2) "the police should know are reasonably likely to elicit" (3) "an incriminating response from the suspect." Innis , 446 U.S. at 301, 100 S.Ct. 1682 (footnotes omitted); Tibiatowski , 590 N.W.2d at 309 ("In order to rise to the level of interrogation, the questioning, whether express or implied, must be reasonably likely to elicit an incriminating response." (citation omitted) (internal quotation marks omitted) ).⁴ To be an interrogation, therefore, police questioning "must reflect a measure of compulsion above and beyond that inherent in custody itself." Innis , 446 U.S. at 300–01, 100 S.Ct. 1682 (explaining that providing a Miranda warning before an interrogation seeks to "vest a suspect in custody with an added measure of protection against coercive police practices").

In analyzing whether a police officer's actions were an interrogation, we consider the totality of circumstances surrounding the police officer's actions to determine whether the actions were reasonably likely to elicit an incriminating response. Tibiatowski , 590 N.W.2d at 311. The likelihood of eliciting an incriminating response is central to the interrogation inquiry. The Supreme Court in Innis explained that, "since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." 446 U.S. at 301–02, 100 S.Ct. 1682. The analysis of whether a police interaction is an "interrogation" focuses on the perspective of the suspect, not the intent of the police. Id. at 301, 100 S.Ct. 1682.

Heinonen argues that the DNA results and the statements that he made to the police officers should have been suppressed because the officers violated his Fifth Amendment privilege against self-incrimination. But if an incriminating testimonial communication is not foreseeable, or a foreseeable response is not an incriminating testimonial communication that is protected by the Fifth Amendment privilege against self-incrimination, then no Miranda warning is needed and suppression is not warranted. See id. at 301–02, 100 S.Ct. 1682 ; State v. Greenleaf , 591 N.W.2d 488, 497 (Minn. 1999) (holding that questions that are unlikely to elicit incriminating responses do not...