Challenging Seizure of Client’s Blood, Breath and

Urine Post-McNeely

Daniel TaylorKen HamiltonVentura County Deputy Public Defenders

1966

1966• Muhammad Ali refused to go to war.• Miranda v. Arizona decided by SCOTUS.• Ronald Reagan becomes governor of CA.• First episode of Star Trek.• Schmerber v. California decided by SCOTUS

which held a nonconsensual warrantless blood draw was constitutional when justified by exigent circumstances.

Schmerber v. California (1966)

“The officer in the present case, however, might reasonably have believed that he was confronted with an emergency in which the delay necessary to obtain a warrant, under the circumstances, threatened "the destruction of evidence."

Schmerber v. California (1966)

“Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.”

Schmerber v. California (1966)

“Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.”

2013• Government contractor Edward Snowden

discloses U.S. government engaged in mass surveillance program of U.S. Citizen communication.

• Nelson Mandela, anti-apartheid lawyer and first black president of South Africa, who was imprisoned by government for 27 years, died.

• McNeely v. Missouri decided by SCOTUS, reaffirmed Schmerber: it’s still good law 47 years later.

McNeely v. Missouri (2013)

“The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.”

McNeely v. Missouri (2013)

“We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.”

McNeely v. Missouri (2013)“Noting that ‘[s]earch warrants are ordinarily required for searches of dwellings,’ we reasoned that ‘absent an emergency, no less could be required where intrusions into the human body are concerned,’ even when the search was conducted following a lawful arrest.”

McNeely v. Missouri (2013)

“‘One well-recognized exception,’ and the one at issue in this case, ‘applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.’”

McNeely v. Missouri (2013)

“To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances.”“Our decision in Schmerber applied this totality of the circumstances approach.”

Why Do So Many 11550’s & DUIs Plead Out?

Since 1966:Absent an exigency--based on the

totality of the circumstances—nonconsensual, Warrantless Blood

(& Urine) Tests Violate The 4th Amendment Protection Against

Unreasonable Search And Seizure

What Can we Do About It? File More Suppression Motions!

• You can’t win if you don’t play• Create opportunities for DA mistakes (play for

the fumble)– Brand New DDAs– Sheriff’s Rotated not long ago– Stop & Investigation by Different LEOs– DRE classes with out of area cops

• Good opportunity to depose adverse witness

Don’t Overcomplicate McNeely

• Your home is your castle and your body is your temple: search inside of either generally requires a warrant or clear exception to warrant requirement

• Exigency requires dissipation + other special facts (No per se Exigency)

• Consent must be free and voluntary and not a mere submission to authority

Argument Outline

• Warrantless Searches = Presumed Unreasonable• Blood/Urine/Breath Test = Search • DA’s Burden To Prove Warrant Exception• No Exigency Here• No Consent Here • DA Didn’t Meet Their Burden

Warrantless SearchPresumed Unreasonable

“searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment’s warrant requirement unless they fall within one of a few narrow exceptions thereto.” – Coolidge v. New Hampshire (1971) (plur. opn. by

Stewart, J.)” (People v. Osband (1996); see also Mincey v. Arizona (1978)

Blood Test = Search

• Blood collection and testing constitutes a search within the meaning of the Fourth Amendment– Schmerber v. California (1966)

Urine Test = Search “Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment.” – Skinner v. Ry. Labor Executives' Ass‘n (1989)

Breath Test = Search“It is not disputed that the administration of a breath test is a search within the meaning of the Fourth Amendment and therefore subject to the requirements of that amendment.”

Burnett v. Anchorage(9th Cir. 1986) 806 F.2d 1447

Warrantlessness means search presumed illegal (we start out winning)

DA’s Burden To Prove Warrant Exception:

(1) consent or (2) special facts to justify

exigency

Drugs In urine sample even less of Exigency than blood draw for DUI

Quality Of Evidence Not Diminished For Drugs In Urine– DUI Blood Test Evidence = Exact BAC

• Purpose = determine if BAC over .08– 11550 Urine Drug Test = Presence Of Drugs

• Purpose = evidence of drug exposure consistent with observed symptoms

• Does not show “Under The Influence”• Does not show “Level of Impairment”• Merely shows “History of Exposure”

• Drugs in urine detectable for days

Lack of Consent

Our Clients Are Not Asked

Submission vs. Consent

• Question is not was taking of sample “forcible,” but whether it was consensual or– Coerced– Compelled– Submission to claim of lawful authority

• DAs Don’t Know The Difference• Advisement Proves No Free & Voluntary Consent

Sheriff’s Dept.

“You do not have a right to

refuse to take this test”

Ventura PD

“You do not have a Constitutional right to

refuse to provide this sample”

Oxnard PD

“You do not have a right torefuse to take this test”

Port Hueneme PD(Bad Version)

“…your refusal can and will be used against you in

court as an indication of your conscientiousness of

guilt in attempting to suppress evidence.”

Port Hueneme PD (Great Version)

“UNDER CALIFORNIA LAW AND THE US CONST., YOU DO NOT HAVE THE RIGHT TO REFUSE TO SUBMIT TO

A CHEMICAL TEST”

5th vs. 4th Amendment

• Source Of Admonitions– People v. Sudduth (1966)– People v. Sarkissian (1978)

• Admonitions Related To 5th A. Miranda– Bodily Fluids ≠ Testimonial

• 4th Still Applies To Searches

“You are required by law to provide a sample”

“. . .the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.”

Florida v. Royer (1983) 460 U.S. 491, 497.

No Written Advisement?Circumstances at play in evaluating lack of free and voluntary consent

– Coercion– Duress– No “Informed” Consent

• Lie• Ruse• Language Barriers

– Custody Status– Age– Mental Infirmity – Use of Force at time of Arrest?– Intoxication?– Exchange for promise of leniency or other benefit?

Statutory “Implied Consent” Sufficient?VC sec. 23612(a)(1)(A) A person who drives a motor vehicle is deemed to have given his or her consent…(applies DUI’s only; no IC For 11550s)

“a person who cooperates with a chemical test pursuant to the implied consent law has given real and voluntary consent, excusing police from obtaining a warrant.” People v. Harris (2014) 225 Cal. App. 4th Supp. 1 (transferred to Court of Appeal with their decision pending)

“Independent of [AZ’s implied consent law], the Fourth Amendment requires an arrestee's consent to be voluntary to justify a warrantless blood draw.”State v. Butler (2013) 232 Ariz. 84; See also Reeder v. State (Tex. App. 2014) 428 S.W.3d 924.

DA Didn’t Meet Their Burden

• DA’s Burden• Limited To Evidence Presented At Hearing • DA’s Arguments Are Not Evidence• DA’s Inferences Cannot Inferred From This

Record• DA’s Asking The Court To Speculate

Argument Recap

• Warrantless Searches = Presumed Unreasonable• Blood/Urine/Breath Test = Search • DA’s Burden To Prove Warrant Exception• No Exigency Here• No Consent Here • DA Didn’t Meet Their Burden of proving

exigency or consent: suppression warranted

The “McNeely” Motion

• Minimalist (Wilder) Motion• give adequate notice of Accepted

Medical Practice (“AMP”) issue for blood• Why file a reply?• Post Evidentiary Brief?• Pocket Brief?

Consequences for withholding consent (i.e., refusing)

The Cost of saying “No”VC sec. 23612 and 23577 provide for criminal and administrative penalties for refusing to submit (give consent) to a chemical test upon being arrested for and convicted of DUI:

• min. of 48 hours jail• license suspended for 1+ years

Can you be punished for failing to consent to a search?

• A resident’s refusal to open a door on proper police demand, in other words, when the police had the right to enter absent the resident’s consent, cannot constitute a violation of Penal Code section 148.

People v. Wetzel (1974)• Fourth Amendment provides constitutional

right to refuse to consent to entry and search; asserting it cannot be a crime.

United States v. Prescott (9th Cir. 1978)

Can your refusal be used against you as consciousness of guilt?

•Admission of refusal doesn’t violate Miranda. South Dakota v. Neville (1983) Not a 4th Amend. case.•Admission of evidence of a defendant's refusal to consent to a warrantless entry of his residence violates the privilege to be free from comment upon the assertion of a constitutional right. People v. Wood (2002) 103 Cal. App. 4th 803.

Does McNeely Apply pre-Mcneely?(or are we hosed by Davis?)

• Wrong question!• Right Question: Does Schmerber apply pre-McNeely?• No Published Binding CA Authority either way yet• Other jurisdiction’s authority is largely disappointing • Distinguish Davis, “As a result, the Court [in

Gant] adopted a new, two-part rule…”• with McNeely: “Our decision in Schmerber applied

this totality of the circumstances approach.”

What’s Happening Now?

DAs

• DAs know consent is the issue• Coaching cops before hearing• Leading cops during hearing• DAs frequently miss other issues

LEOs

• Got Training on McNeely• LEOs Know Consent is the issue• New forms are coming• Altering old forms• Testifying/Lying = didn’t give admonitions• Testifying/Lying = “Voluntary” test • Coercing – Urine test = Cite & Release– No Test = Jail

Blood Draw WarrantsPC sec. 1524(a)(13) (Amend. 2013)

A search warrant may be issued upon any of the followinggrounds:

When a sample of the blood of a person constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officer's request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner. This paragraph is not intended to abrogate a court's mandate to determine the propriety of the issuance of a search warrant on a case-by-case basis.

Judges Granting Post McNeely Motions

• Wright• Campbell• Kelegrew• Lund• Guasco• Redmond• Inumerable• Eskin• Taylor

Judges Pre McNeely Cases

• Most Judges buy the Davis argument• Eskin – Stated does not believe Davis applies

• Redmond– Didn’t Address Davis

File your motions to challenge seizure of blood, breath, and urine

• Warrantless Tests Presumptively Violate the 4th Amendment• No warrant: Valid reason for a

1538.5• DA must prove consent or

exigency (and often cannot)