A STATE OF MINNESOTA IN SUPREME COURT. v. District Court File No. 19HA-CR APPELLANT S REPLY BRIEF AND ADDENDUM

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1 A STATE OF MINNESOTA September 8, 2016 IN SUPREME COURT In re Timothy Leslie, Dakota County Sheriff, Appellant, State of Minnesota, v. District Court File No. 19HA-CR John David Emerson, Respondent. APPELLANT S REPLY BRIEF AND ADDENDUM JAMES C. BACKSTROM OFFICE OF THE MINNESOTA Dakota County Attorney APPELLATE PUBLIC DEFENDER Phillip D. Prokopowicz CATHRYN MIDDLEBROOK Chief Deputy Chief Appellate Public Defender Attorney Registration # Attorney Registration # Helen R. Brosnahan Suite 300 Assistant County Attorney 540 Fairview Avenue North Attorney Registration # St Paul, MN Highway 55 Telephone: Hastings, MN Telephone: ATTORNEY FOR RESPONDENT ATTORNEYS FOR APPELLANT LORI SWANSON AMERICAN CIVIL LIBERTIES UNION Minnesota Attorney General OF MINNESOTA Michael Everson (# ) Teresa Nelson ( ) Assistant Attorney General Legal Director 445 Minnesota Street, Suite Myrtle Avenue, Suite 180 St. Paul, MN St Paul MN Attorneys for Amicus Curiae Attorney for Amicus Curiae American Civil Minnesota Attorney General Liberties Union of Minnesota

2 TABLE OF CONTENTS Page Statement of Facts... 1 Introduction... 1 Argument I. King was not a radical departure from Fourth Amendment jurisprudence... 2 II. Appellant has met criteria for issuance of a writ Conclusion i

3 TABLE OF AUTHORITIES Page Federal Cases Maryland v. King, U.S., 133 S.Ct (2013)... passim Schmerber v. California, 384 U.S. 757, 86 S.Ct (1966)... 9 United States v. Mitchell, 652 F.3d 387 (3rd Cir. 2011)... 5 Minnesota Cases Hamilton v. Comm r Pub. Safety, 600 n.w.2d 720 (Minn. 1999) In Re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006)... passim In Re Welfare of M.L.M., 813 N.W.2d 26 (Minn. 2012)... 11, 13 Kahn v. Griffin, 701 N.W.2d 825 (Minn. 2005)... 8, 10 State v. Bartylla, 755 N.W.2d 8 (Minn. 2008)... 6, 11 State v. Bernard, 859 N.W.2d 762 (Minn. 2015)... 4, 11 State v. Johnson, 813 N.W.2d 1 (Minn. 2012)... 6, 11, 13 State v. Lemmer, 763 N.W.2d 650 (Minn. 2007) State v. Lopez, 778 N.W.2d 700 (Minn. 2010) State v. McMurray, 860 N.W.2d 686 (Minn. 2015) State v. Riley, 226 N.W.2d 907 (Minn. 1975)... 4, 10 State v. Scales, 518 N.W.2d 587 (Minn. 1994) State v. Schnagl, 859 N.W.2d 297 (Minn. 2015) State v. Turner, 550 N.W.2d 622 (Minn. 1996) Foreign Cases Anderson v. Commonwealth, 650 S.E. 2d 702 (Vir. 2007)... 5 Brown v. State, 79 A.3d 410 (Md. Ct. Spec. App. 2013)... 5 Ringer v. State, 2014 WL (Ind. Ct. App. Nov. 3, 2014)... 5 State v. Biery, 2014 WL (Kan. Ct. App. Feb. 28, 2014)... 5 State v. Brown, 2013-Ohio3134 (Ct. App.)... 5 State v. Franklin, 76 So.3d 423 (La. 2011)... 5 Minnesota Statutes Minnesota Statute Minnesota Statute 299C , 13, 14, 15, 16 Minnesota Statute 299C.105 subd. 1(a)(1)... 1, 6, 7, 8, 9, 10, 12 ii

4 Minnesota Statute 299C.105 subd. 1(a)(3)... 1, 6, 7, 8, 9, 10, 12 Minnesota Statute Maryland Statutes Maryland Public Safety Code 2 504(a(3)(i)... 7 Maryland Public Safety Code 2 504(d)(1)... 7 Maryland Public Safety Code 2 505(b)(1)... 6, 7 Minnesota Rules Minn. R. Civ. App Minn. R. Civ. App Minn. R. Civ. App Minn. R. Crim. P Minn. R. Crim. P Minn. R. Crim. P , 13 Minn. R. Crim. P subd. 2(1) Minn. R. Crim. P iii

5 STATEMENT OF FACTS In addition to the facts set out in the parties principle briefs, Appellant adds the following: The underlying criminal case against Respondent Emerson ( Emerson ) is scheduled for jury trial on January 23, 2017, after the appointment of new counsel in August INTRODUCTION There is no principled basis to depart from Fourth Amendment jurisprudence by interpreting the Minnesota Constitution to provide greater protections than the Fourth Amendment in the standardized collection of DNA following a judicial determination of probable cause from persons arrested for committing serious crimes. In their respective briefs, Emerson and the ACLU 1 argue that the United States Supreme Court s decision in Maryland v. King, U.S., 133 S.Ct (2013), departed from established Fourth Amendment jurisprudence and that Minnesota Statute Sections 299C.105 subd. 1(a)(1) and (3) violate the Minnesota Constitution. (RB 2 at 18-21, 22, ACLU Br. 3 at 5). Emerson also argues that Appellant cannot meet the threshold requirements to obtain a 1 ACLU refers to Amicus Curiae American Civil Liberties Union of Minnesota 2 RB refers to Respondent Emerson s Brief. 3 ACLU Br. refers to the ACLU s Brief. 1

6 writ. RB at This Court should reject these arguments, reverse the decision of the Court of Appeals and issue the writ. ARGUMENT I. King was not a radical departure from Fourth Amendment jurisprudence. King was the logical extension of the principle that it is reasonable to take a DNA sample from a person convicted of a crime. The King Court evaluated Maryland s DNA collection statute under its long established Fourth Amendment jurisprudence. It reiterated that the Fourth Amendment s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner and that the ultimate measure of the constitutionality of a governmental search is reasonableness. King 133 S.Ct. at 1969 (internal citations omitted). The King Court then went on to find: In some circumstances, such as when faced with special law enforcement needs, diminished 4 The ACLU also argues that because an audit in 2001 found there were 5 submission errors, this Court should find the privacy interests of individuals outweighs the government s interests in accurately identifying arrestees. Finding a statute unconstitutional as a result of a statutory violation is not the appropriate remedy. Minnesota Statute 299C.155 subd 3 provide for criminal and civil remedies for violations of the statute. Furthermore, a 2010 audit of the MN BCA lab found it to comply with federal law and procedures. See Addendum p. 1. 2

7 expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable. Those circumstances diminish the need for a warrant, either because the public interest is such that neither a warrant nor probable cause is required, or because an individual is already on notice, for instance because of his employment, or the conditions of his release from custody, that some reasonable police intrusion on his privacy is to be expected. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by the interpolation of a neutral magistrate between the citizen and the law enforcement officer. King, 133 S.Ct. at (internal citations and quotations omitted)(emphasis added). While a significant government interest is not by itself enough to justify a search, the government interest must outweigh the degree to which the search invades an individual s legitimate expectations of privacy. Id at The Court determined that: DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. 3

8 Id. at The King court noted that the search of the suspect at the place of detention can be extensive, requiring, for example, some detainees to lift their genitals or cough in a squatting position. King, 133 S.Ct. at 1978 (citations omitted). The King decision is consistent with prior decisions holding that individuals under arrest have a substantially reduced expectation of privacy. The King Court recognized that the use of DNA for identification is no different than matching an arrestee s fingerprints to those recovered from a crime scene. King, 133 S.Ct. at The minimal intrusion into the privacy of an arrestee is outweighed by the critical need for law enforcement to accurately identify detainees. King, 133 S.Ct. at In the end, the King Court concluded that forcing an individual to submit to a buccal swab after being arrested was reasonable because it served the legitimate government interest that law enforcement needs a safe and accurate way to identify persons and possessions they take into custody. Id. at Indeed, this Court has recognized that individuals who are in custody have a reduced expectation of privacy. See State v. Riley, 226 N.W.2d 907 (Minn. 1975); State v. Bernard, 859 N.W.2d 762 (Minn. 2015). Several states and the federal courts have upheld statutes authorizing DNA collection from arrestees, 4

9 reasoning that the minimal invasion into the individual s privacy interests were not outweighed by the substantial state interests in collecting the DNA. 5 In King, the Court also held that the reasonableness inquiry into whether a warrant is necessary to require an individual to submit to a buccal swab considers two other circumstances in which the Court has held that particularized suspicion is not categorically required: diminished expectations of privacy and minimal intrusions. Id. at 1979 (citation omitted). The Court ultimately concluded that the intrusion of the buccal swab was minimal and that the individual s expectation of privacy is significantly reduced to overcome the need for a warrant. Id. at The King Court noted that DNA is a markedly more accurate form of identifying arrestees than fingerprints. King, 133 S.Ct. at The legitimate interests in conclusively identifying individuals arrested for 5 See United States v. Mitchell, 652 F.3d 387, 410 (3rd Cir. 2011)(upholding constitutionality of federal statute authorizing routine DNA collection from individuals arrested for serious crimes); State v. Franklin, 76 So.3d 423 (La. 2011)(collection of DNA pre-conviction from those arrested is no different than taking fingerprints and photographs); Anderson v. Commonwealth, 650 S.E.2d 702 (Vir. 2007)(taking DNA sample from an arrestee requires no additional finding of individualized suspicion); Brown v. State, 79 A.3d 410 (Md. Ct. Spec. App. 2013)(buccal swab can be taken from person arrested for violent crime); Ringer v. State, 2014 WL (Ind. Ct. App. Nov. 3, 2014)(obtaining DNA sample does not violate state or federal constitution); State v. Biery, 2014 WL (Kan. Ct. App. Feb. 28, 2014)(DNA collection statute for individuals arrested for a felony does not violate constitution); State v. Brown, 2013-Ohio3134 (Ct. App.)(buccal swab can be taken from person under arrest). 5

10 a serious felony are not outweighed by the individuals reduced expectation of privacy associated with being held in custody. King, was not a radical departure, but rather the natural outcome of prior precedent recognizing the constitutionality of collecting DNA samples from persons involved in the criminal justice system. See Bartylla, 755 N.W.2d 8 (Minn. 2008); Johnson, 813 N.W.2d 1, (2012); In re M.L.M, 813 N.W.2d 26 (Minn. 2012). A. The language and primary purpose of Sections 299C.105 subd. 1(a)(1) and (3) and Maryland Public Safety Code 2 505(b)(1) are virtually identical. The King Court explicitly stated its decision would implicate more than the specific Maryland law in the case. 133 S.C.t. at 1968 ( Twenty-eight states and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees.although those statutes vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law. )(internal citation omitted)(emphasis added). The King decision concluding that taking a DNA sample from individuals arrested and charged with an enumerated serious felony offense following a probable cause determination implicitly overruled the Minnesota Court of Appeals decision in C.T.L 6. 6 In Re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006). 6

11 Both Sections 299C.105 subd. 1(a)(1) and (3) and the Maryland Public Safety Code Section provide for the collection of DNA samples from individuals who are charged with an enumerated crime and then analyzed following a determination of probable cause by a judicial officer. See 299C.105subd. 1(a)(1) and (3), and Md. Pub. Saf. Code Ann (a)(3)(i) (2010), 2 504(d)(1)(2010). Both statutes only allow for DNA to be taken for identification purposes. See 299C.105 subd. 1(a)(1) and (3), Md. Pub. Saf. Code 2 505(b)(1) and 2 512(c)(2010). Emerson argues that the Maryland statute differs from Sections 299C.105 subd. 1(a)(1) and(3) in that its primary purpose is to identify the defendant, to verify his criminal history for pretrial release determinations, and to uncover additional information about the arrestee to protect jail staff, whereas the primary purpose of Sections 299C.105 subd. 1(a)(1) and (3) is to take DNA and enter it into a system to be used to identify those who have committed other offenses. See RB at 17. There is no basis for such distinction given the plain language of the statutes are virtually identical. The Maryland Code limits the information added to the DNA database and how it may be used to allow only DNA records that directly relate to the identification of individuals shall be collected and stored. Maryland Pub. Saf. Code 2 505(b)(1). King, 133 S.Ct. at Similarly, 299C.105 subd 1 incorporated Minn. Stat. 299C.155 which 7

12 provides the results of the bureau s analysis and related records are private data on individuals and may only be used for law enforcement identification purposes. Because the two statutes have virtually identical language and the Supreme Court s acknowledgement that its decision will impact those 28 states and the Federal Government with similar standardized DNA collection laws, its decision over-ruled the Court of Appeal s decision in C.T.L. which rested on Fourth Amendment analysis. As stated in Section III infra., C.T.L. determined that Sections 299C.105, subd 1(a)(1) and (3) dispense with the requirement under the Fourth Amendment that before conducting a search, law enforcement must first obtain a warrant. Id. at 491 (emphasis added). It was only by proxy that the court in C.T.L. found Sections 299C.105 subd. 1(a)(1) and (3) violated the Minnesota Constitution. B. C.T.L. was not decided on Minnesota constitutional analysis. Sections 299C.105 subd. 1(a)(1) and (3) do not violate the Minnesota Constitution. See AB 7 at and AG Br. 8 at 7-8. This Court has long held that when there are substantially identical provisions of the state and federal constitutions, there is a general principle favoring uniformity with the federal 7 AB refers to Appellant s principle brief. 8 AG Br. refers to the Amicus Curiae Brief of the Minnesota Attorney General. 8

13 constitution and the value of consistency of practice in state and federal courts. Kahn v. Griffin, 701 N.W.2d 815, 824 (Minn. 2005). C.T.L. was not decided on Minnesota constitutional analysis. C.T.L. acknowledged that Article I, Section 10 of the Minnesota Constitution is substantively the same as the Fourth Amendment, 9 and then relied on the United States Supreme Court decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct (1966), in its analysis of whether the search was constitutional. See C.T.L. 722 N.W.2d at C.T.L. determined that Sections 299C.105, subd 1(a)(1) and (3) dispense with the requirement under the Fourth Amendment that before conducting a search, law enforcement must first obtain a warrant. Id. at 491 (emphasis added). Even though the specific issue certified to the Court of Appeals in C.T.L. was whether 299C.105 subd. 1(a)(1) and (3) violate the Fourth Amendment and Art. I, Section 10 of the Minnesota Constitution, the C.T.L. Court in its decision did not conduct a separate analysis of the Minnesota Constitution and it was only by proxy that the C.T.L. Court found the statute to violate the Minnesota Constitution. 9 If this Court agrees that Section 299C.105 is constitutional under the Fourth Amendment and the King decision, the C.T.L. decision has diminished precedential value because this Court accepted review on the constitutionality of Section 299C under the Minnesota Constitution. 9

14 C. Minnesota Statute Sections 299C. 105 subd. 1(a)(1) and (3) do not violate the Minnesota Constitution. In King, the Court determined taking a buccal swab DNA sample from individuals charged with a serious crime following a determination of probable cause, does not violate the Fourth Amendment of the United States Constitution. This Court has never addressed the issue of whether taking DNA samples from individuals pre-conviction violates the Minnesota Constitution. Minnesota courts have long recognized that individuals who have been arrested have a diminished expectation of privacy. See State v. Riley, 226 N.W.2d 907(1975). There is no principled reason to depart from Fourth Amendment jurisprudence which is sufficient to protect the basic rights and liberties of Minnesota citizens. This Court generally does not independently apply the state constitution absent language, concerns, and traditions unique to Minnesota. Kahn, 701 N.W.2d at 824 (Minn. 2005). Unlike those decisions relied on by Emerson where this Court has departed from established Fourth Amendment jurisprudence in a variety of criminal investigative procedures, Minnesota Statute 299C.105 was enacted following debate and deliberation by the Minnesota Legislature. See RB at (referencing cases holding the Minnesota Constitution provides greater protections related to searches incident to arrest, dog sniff situations, DWI road blocks, motor vehicle passenger and social guest protections). All of the decisions where this Court found Fourth Amendment jurisprudence is insufficient to 10

15 protect the rights and liberties of Minnesotans involved actions of the executive branch rather than a decision by the legislature. As elected representatives the Minnesota Legislature, in performance of its legislative function reflects the history, traditions, and views of the people. In enacting Minn. Stat. 299C.105 the legislature carefully weighed the reasonableness of requiring individuals arrested of serious enumerated felony offenses to provide a DNA sample by way of a buccal swab outweighed any minimal privacy interests of those individuals. The same principals this Court used to hold that the minimal intrusiveness of a buccal swab to collect DNA for identification purposes in Bartylla, Johnson, and In Re M.L.M., should apply here. To hold to the contrary would circumvent the role of the legislature in enacting laws which reflect its citizens history, values and traditions. Most recently this Court has found that requiring individuals to provide a breath sample is not an unreasonable search incident to arrest under the Minnesota Constitution. See State v. Bernard, 859 N.W.2d 762, 767. There is no unique, distinct, or peculiar issue of state and local concern that requires additional protection from the Minnesota Constitution. See State v. McMurray, 860 N.W.2d 868, 692 (Minn. 2015) (internal citations omitted). Section 299C.105 reflects the history, values, traditions, and adequately protects the basic rights and liberties of Minnesota citizens. This Court should not depart from Fourth 11

16 Amendment jurisprudence. Sections 299C.105 subd. (1)(a)(1) and (3) are constitutional under both the Fourth Amendment and Art. I, Section 10 of the Minnesota Constitution. II. Appellant has met criteria for issuance of a writ. Appellant established the three criteria for issuance of a writ have been met. The district court exercised judicial power that was not authorized by law and Appellant sustained an injury for which no adequate remedy is available. State v. Turner, 550 N.W.2d 622, 625 (Minn. 1996). A. The district court exceeded its authority in prohibiting Appellant from taking a DNA sample from Emerson. Similar to the situations in which a party did not have a full and fair opportunity be heard and litigate the issue, Appellant is not a party to the criminal prosecution and was not able to litigate the issue to protect his interests. See State v. Schnagl, 859 N.W.2d 297 (Minn. 2015); State v. Lemmer, 763 N.W.2d 650 (Minn. 2007). The prosecutor did not have an interest or incentive to protect Appellant s booking procedures because the DNA sample was not sought for purposes of obtaining evidence to be used in the criminal prosecution. The district court exceeded its authority by addressing the administrative actions of Appellant in the criminal prosecution of Emerson. Emerson s reliance on Minn. R. Crim. P to support his position that the district court had authority to rule on the constitutionality of Section 12

17 299C.105 in his criminal prosecution is flawed. Minn. R. Crim. P provides that if the prosecutor or defendant demands a hearing under Rule 8.03, the court must conduct an Omnibus Hearing and hear all motions relating to a specified list of evidentiary issues. Rule 8.03 which is incorporated into Rule 11.02, provides for a hearing to be held if a demand is made by the prosecutor or defendant on the admissibility at trial of evidence specified in the prosecutor s Rule 7.01 notice, or the admissibility of any evidence obtained as a result of the specified evidence. Minn. R. Crim. P (emphasis added). As argued infra and in Appellant s principle brief, a sample obtained pursuant to Section 299C.105 is not an evidentiary sample. See infra Section V. C. and AB at 7. Emerson s reliance on Johnson and M.L.M. to support his assertion that the district court has subject matter jurisdiction is flawed. Both Johnson and M.L.M. challenged the constitutionality of taking a DNA sample under Minn. Stat for certain offenders at the time of sentencing hearings. See Johnson 813 N.W.2d at 3; M.L.M., 813 N.W.2d at 29. A criminal sentence is a direct component of the criminal prosecution whereas Appellant s booking procedures are administrative and not integral to the prosecution of a criminal charge. Similarly, Emerson s reliance on State v. Scales, 518 N.W.2d 587 (Minn. 1994) is inapplicable in that Scales addresses the manner in which police obtain evidence against an individual to be used in a criminal prosecution. Emerson 13

18 cites no authority for his assertion that the district court had jurisdiction to rule on his challenge to section 299C.105 in the criminal proceeding. Finally, Emerson misconstrues this Court s holding in State v. Lopez, 778 N.W.2d 700 (Minn. 2010). Emerson asserts that Lopez allows district courts in criminal cases to impose or vacate the civil consequence of the registration requirement. See RB at 29. It does not so hold. Lopez, is a case of statutory interpretation where this Court held that registration is mandated under Minn. Stat only where the two offenses arise from one set of circumstances, meaning that the two charges must be sufficiently linked in time, location, people, and events that they must overlap in these criteria. 778 N.W.2d. at 705. The district court exceeded its authority by sua sponte deciding on the constitutionality of the statute. Emerson did not raise the issue of the constitutionality of the statute in his motion to preclude Appellant from taking a biological sample under Section 299C.105. It is well settled that the party challenging a statute carries the heavy burden of demonstrating beyond a reasonable doubt a constitutional violation has occurred. See Hamilton v. Comm r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). The district court exceeded its authority by failing to allow the parties to fully litigate the issues and independently raising and deciding the issue. 14

19 B. Appellant has sustained an injury. The district court has prohibited Appellant from complying with a statutory obligation on the basis that the statute is unconstitutional. Appellant was injured not being a party to the proceedings as well as because he was unable to litigate the issue ultimately decided by the district court the constitutionality of the statute. Because the constitutionality of Section 299C.105 and Appellant s ability to comply with the his statutory obligations are so intertwined, Appellant s inability to comply with his statutory duty, to identify individuals who are brought to the Dakota County Jail, has no adequate ordinary remedy. C. Appellant has no available adequate remedy. Contrary to Emerson s contention that Appellant has sufficient remedies available to him, no such remedy exists. See RB at 28, Emerson argues that Appellant can request an order under Minn. R. Crim. P subd. 2(1). Emerson confuses the purpose of Rule 9.02 and Section 299C.105. Rule 9 is used to obtain biological samples that will be used as evidence against the accused in a criminal prosecution whereas section 299C.105 is used to identify the individual charged with an enumerated offense. Emerson also argues that the County can file a pretrial appeal under Minn. R. Crim. P if identity of the defendant is critical to the prosecution. See RB at Emerson again confuses the purpose 15

20 of Minn. R. Crim. P and Section 299C.105. A district court prohibiting Appellant from complying with the requirements of 299C.105 will not meet the critical impact standard necessary under Minn. R. Crim. P because a sample obtained under 299C.105 is not an evidentiary sample used for purposes of proving the underlying criminal offense. Similarly, Minn. R. Civ. App. P. 105 is inapplicable in that it applies to orders not delineated in Minn. R. Civ. App. P which identifies appealable orders in civil proceedings. The only remedy available to Appellant is a writ under Minn. R. Civ. App. P

21 CONCLUSION For the foregoing reasons, this Court should reverse the decision of the Court of Appeals and find that Section 299C.105 is constitutional under the Minnesota Constitution and grant Appellant s request for a writ. Dated: September 8, 2016 JAMES C. BACKSTROM DAKOTA COUNTY ATTORNEY By: /s/helen R. Brosnahan James C. Backstrom Dakota County Attorney Attorney Registration No Phillip Prokopowicz Attorney Registration No Helen R. Brosnahan Assistant Dakota County Attorney Attorney Registration No Dakota County Judicial Center 1560 Highway 55 Hastings, MN Telephone: (651) helen.brosnahan@co.dakota.mn.us Attorneys for Appellant 17

22 CERTIFICATE OF COMPLIANCE Helen R. Brosnahan, attorney for Appellant Timothy Leslie, Dakota County Sheriff, hereby certify that this Brief complies with the requirements of Minnesota Rule of Civil Appellate Procedure 132. The Brief was prepared using Microsoft Office Word, font face size 13, containing 3,590 words. The word count is stated in reliance on Microsoft Word 2010, the word processing program used to prepare this brief. The undersigned also certifies that this brief has been scanned for viruses and is virus-free. Dated: September 8, /s/helen R. Brosnahan Helen R. Brosnahan Assistant County Attorney 18