Constitutional rights cases, important legal rules, and case law decisions2020-03-16T01:28:10+00:00

Constitutional rights 

Did you know you have Constitutional rights under the United States Constitution, and, the Minnesota Constitution?  Do you know that the provisions of the Constitution were promulgated for your protection, your benefit?  Do you know that Constitutional rights are good things?  Do you know that you should invoke your Constitutional rights?  Do you know what your constitutional rights are?

For example, under the First Amendment, you have the right to worship God?  You also have the right to freedom of speech.

Under the Second Amendment, you have the right to keep and bear arms.

Under the Fourth Amendment, you have rights against unreasonable searches and seizures.

Under the Fifth Amendment, you have a number of different rights, such as the right to remain silent, the right to a fair trial, the right to a speedy trial, the right to due process of law.

Under the Sixth Amendment, you have the right to counsel in a criminal case, and the right to confront and cross examine those who accuse you of wrongdoing in a criminal case.

Under the Eighth Amendent, you have rights against cruel and unusual punishments.

Under the 13th Amendment, slavery was abolished.

Under the 14th Amendment, you have the right to equal protection of the laws.

Fourth Amendment rights against unreasonable searches and seizures 

Do you know that you have the right to be left alone?  Do you know that any search conducted of your person, automobile or home without a warrant is presumptively unreasonable?  Do you know that under the Fourth Amendment,  in regard to your home, you are considered the King of your Castle, your residence?

Under the Fourth Amendment, you should not ever consent to a search of your person, your vehicle, or your home.  Generally, law enforcement are required to have a warrant to arrest you, or, search you, your vehicle, or your home.  You can simply, and politely, state that you do not consent to any search or pat down.

Please note however, that if law enforcement does not have a warrant and proceeds to conduct a search anyway, please do not try to stop them or interfere in any way.  You are required by law to allow them to conduct the search; but then, later, you can challenge the constitutionality of the search in court (if anything is found and seized).  You can later bring a motion to suppress evidence found in a search on the grounds that it violated your Fourth Amendment rights.

Fifth Amendment right to remain silent 

You have the right to remain silent, and anything you say can and will be used against you in a court of law.

Sound familiar? Yes? This is your Miranda warning.  And, you should always invoke your rights to remain silent.  Always.  And, you can do so in a polite way, just say,

I invoke my rights to remain silent

I don’t want to talk

I don’t want to answer your questions

I want a lawyer

You always have a right to remain silent.  You have a right to not be forced to incriminate yourself.  Don’t ever confess to committing a crime.  Just be quiet.  Say, I don’t want to talk and I want a lawyer.  You will be glad you did so.

CASE LAW UPDATE:  Erroneous case re Fifth Amendment 

Following a jury trial, defendant was convicted of 1st degree premeditated murder.  On appeal, defendant contended that the trial court committed reversible error when it admitted evidence his post-arrest, pre-Miranda silence, during the State’s case-in-chief, and when it allowed the prosecutor to discuss defendant’s silence in closing argument.  The Minnesota Supreme Court, surprisingly, held that (1) the trial court did not commit plain error in admitting evidence of appellant’s post-arrest, pre-Miranda silence during the state’s case in chief; (2) any error by the trial court in permitting the state to discuss appellant’s post arrest, pre Miranda silence in closing argument was harmless.Miranda warning does not create right to remain silent, the Fifth Amendment to the United States Constitution did.

With all due respect, this holding should be found to be in great error.  A citizen has the Fifth Amendment right to remain silent, so that they cannot be compelled to incriminate themselves.  It should make no difference whether or not a Miranda warning has been read.  The Miranda warnings were created in order to protect a person’s right to remain silent.  The Miranda warnings do not create the right to remain silent.  What if a person already knows that they have the U.S. Constitutional Fifth Amendment right to remain silent before the Miranda warnings are given, and, they choose to remain silent.  The Fifth Amendment stands for the proposition that their silence cannot be used against them, and that the invocation of a constitutional right cannot be used against a person.  The right to remain silent exists before a Miranda warning is given.  The right to remain silent exists all the time.  This is a terrible decision  and needs to be overruled.  The lawyers on the case need to take this to the United States Supreme Court.

CASE LAW UPDATE:  The Fourth Amendment particularity clause devastatingly undermined by Minnesota Court of Appeals in 3rd degree criminal sexual conduct case  

Defendant was charged with 3rd degree criminal sexual conduct and 2nd degree assault with a dangerous weapon.  Earlier, law enforcement obtained a search warrant for “white dish towel like cloth.”  When law enforcement executed the search warrant, they seized a blue and white striped towel instead, alleged used by defendant to clean himself after sexually assaulting the complainant.   Defendant moved to suppress the blue and white towel on the grounds that its seizure violated the particularity requirement in the Fourth Amendment.  The trial court granted the motion to suppress.  On appeal, the Minnesota Court of Appeals reversed, holding that law enforcement may seize an item pursuant to a search warrant if the item is described in the search warrant, if there is a strong relationship between the seized item and the things described in the search warrant, or if the seized item clearly and definitely relates to the suspected criminal conduct that gave rise to the issuance of the search warrant.  Reversed and remanded.

State v. Sexter, A19-0586, Steele County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Commentary:  The Fourth Amendment to the United States Constitution provides that a search and seizure violates the Fourth Amendment unless law enforcement first obtains a warrant, upon probable cause, supported by oath or affirmation, and particularly describing the things to be seized.  Seizure of the blue and white towel violated the Fourth Amendment.  This case devastates the particularity requirement of the Fourth Amendment.  This case needs to be reversed by the Minnesota Supreme Court.

CASE LAW UPDATE:  The coercion statute was struck down as unconstitutional as violative of free speech  

The State challenged the trial court’s pretrial dismissal of its complaint against defendant charging him with attempted coercion.  The trial court determined that the charging statute, Minn. Stat. §609.27, subd. 1(4), was unconstitutional on its face because it prohibited a substantial amount of constitutionally protected speech and could not be narrowed by judicial construction.

The Minnesota Court of Appeals held that Minn. Stat. §609.27, subd. 1(4), which is part of Minnesota’s criminal coercion statute, is facially unconstitutional under the First Amendment because it restricts free speech, is substantially overbroad, and is not reasonably susceptible to a narrowing construction or severance of unconstitutional provisions.  Affirmed.

State v. Jorgenson, A19-0323, Olmsted County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

CASE LAW UPDATE:  The burden of proof is on the State in a restitution hearing  

In this appeal following a contested restitution hearing, defendant argued that the trial court failed to place the burden of proof on to the State as required by the restitution statute.  The Minnesota Court of Appeals held that Minn. Stat. §611A.045, subd. 3, places the burden of proof on the State at a contested restitution hearing, and the trial court improperly placed the burden on defendant to prove that the victim was not the owner of the property.  Reversed and remanded.

State v. Sargent, A19-0050, Mahnomen County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

CASE LAW UPDATE:  Habeas corpus granted when conditional release statute erroneously applied retroactively in violation of ex post facto clause of United States Constitution 

In this appeal from the denial of a petition for a writ of habeas corpus, defendant argued that the Minnesota Department of Corrections erred in calculating his conditional release term.  Noting that the DOC’s calculation of the duration of defendant’s conditional release was based on a statute not enacted at the time of defendant’s offense, the Minnesota Court of Appeals concluded that, once the correct conditional release statute was applied, it was evidence that defendant completed his conditional release, and his petition for writ of habeas corpus should have been granted.  Reversed and remanded.

Thundercloud v. Harpstead, A19-0529, Carlton County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

CASE LAW UPDATE:  No qualified immunity for state trooper where civilian yelled obscenities 

Where a State Trooper challenged the denial of qualified immunity on claims of First Amendment retaliation and Fourth Amendment unreasonable seizure after plaintiff was arrested for disorderly conduct for yelling an expletive at the officer from a moving vehicle, the District Court properly denied qualified immunity because the arrest violated the plaintiff’s rights since the shout was unamplified and fleeting and was not an unreasonable or excessive noise to constitute disorderly conduct, and the trooper lacked probable cause for the arrest.  Judgment affirmed.

Thurairajah v. City of Fort Smith, 17-3419, appealed from the Western District of Arkansas, Smith, M.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

CASE LAW UPDATE:  Whether the constitutional right to travel is not violated by drivers licensing statutes

Defendant was convicted of driving after cancellation as inimical to public safety.  Defendant argued that his conviction for driving after cancellation as inimical to public safety violated his constitutional right to interstate travel.  The Minnesota Court of Appeals concluded that defendant failed to demonstrate that section 171.24 of the Minnesota Statutes, or indeed any provision of the drivers licensing statutes, placed an unconstitutional burden on the right of a citizen to travel between or within the states.  Affirmed.

State v. Hunt, A19-0193, Scott County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Localities served:  The entire State of Minnesota

Ms. Torgerson, Esq. practices throughout the State of Minnesota.  She can also represent people in other states if granted pro hace vice admission.  More specifically, the terrorities in which Ms. Torgerson, Esq. practices include:  Minneapolis, St. Paul, Hennepin County, Ramsey County, Aitkin County, Albert Lea, Anoka County, Becker County, Beltrami County, Benton County, Big Stone County, Blaine, Bloomington, Blue Earth County, Brooklyn Center, Brooklyn Park, Brown County, Carlton County, Carver County, Cass County, Chippewa County, Chisago County, Clay County, Clearwater County, Columbia Heights, Cook County, Coon Rapids, Cottonwood County, Crow Wing County, Crystal, Dakota County, Dodge County, Douglas County, Faribault County, Freeborn County, Fridley, Goodhue County, Fillmore County, Grant County, Hennepin County, Hopkins, Houston County, Hubbard County, Isanti County, Itasca County, Jackson County, Kanabec County, Kandiyohi County, Kittson County, Koochiching County, Lac Qui Parle County, Lake County, Lake of the Woods County, LeSueur County, Lincoln County, Lyon County, Mahnomen County, Maple Grove, Marshall County, Martin County, McLeod County, Mille Lacs County, Meeker County, Minneapolis, Morrison County, Mower County, Murray County, Nicollet County, Nobles County, Norman County, Olmsted County, Otter Tail County, Pennington County, Pine County, Pipestone County, Plymouth, Polk County, Pope County, Ramsey County, Red Lake County, Red Wing, Redwood County, Renville County, Rice County, Richfield, Robbinsdale, Rochester, Rock County, Roseau County, St. Louis County, St. Louis Park, St. Paul, Savage, Scott County, Sherburne County, Shakopee, Sibley County, Spring Lake Park, Stearns County, Steele County, Stevens County, Stillwater, Swift County, Todd County, Traverse County, Wabasha County, Wadena County, Waseca County, Washington County, Watonwan County, Wilkin County, Winona County, Wright County, Yellow Medicine, and throughout the State of Minnesota. Again however, she practices in all cities, all counties, and all courts.

For representation, please call Minnesota Criminal Defense Attorney Lynne Torgerson at (612) 339-5073.