IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
RECEIVED, 7/27/2015 3:20 PM, Joanne P. Simmons, Fifth District Court of Appeal
FIFTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
CASE NO.
5D15-405
JOHN NATHAN WILLIS,
Appellee,
_______________________________/
ON APPEAL FROM THE CIRCUIT COURT
OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
INITIAL BRIEF OF APPELLANT
PAMELA JO BONDI
ATTORNEY GENERAL
KRISTEN L. DAVENPORT
ASSISTANT ATTORNEY GENERAL
Fla. Bar #909130
444 Seabreeze Blvd.
Fifth Floor
Daytona Beach, FL 32118
(386) 238-4990
[email protected]
COUNSEL FOR APPELLANT
TABLE OF CONTENTS
TABLE OF AUTHORITIES
. . . . . . . . . . . . . . . . . . . .
ii
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS
. . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT
THE TRIAL COURT ERRED IN GRANTING THE
DEFENDANT’S MOTION TO SUPPRESS. . . . . . . . . 7
CONCLUSION
. . . . . . . . . . . . . . . . . . . . . . . . .
CERTIFICATE OF SERVICE
26
. . . . . . . . . . . . . . . . . . .
27
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . .
27
i
TABLE OF AUTHORITIES
FEDERAL CASES:
Arizona v. Gant,
556 U.S. 332 (2009)
. . . . . . . . . . . . . . . . . . . .
22
Burnett v. Municipality of Anchorage,
634 F. Supp. 1029 (D. Alaska),
affd, 806 F.2d 1447 (9th Cir. 1986)
. . . . . . . . . . . 15,22
Byrd v. Clark,
783 F.2d 1002 (11th Cir.1986)
. . . . . . . . . . . . . . .
23
Davis v. United States,
131 S. Ct. 2419 (2011) . . . . . . . . . . . . . . . . . . .
25
Maryland v. King,
133 S. Ct. 1958 (2013)
. . . . . . . . . . . . . . . . . . .
21
Missouri v. McNeely,
133 S. Ct. 1552 (2013)
. . . . . . . . . . . . . . . . . . ibid.
Schmerber v. California,
384 U.S. 757 (1966)
. . . . . . . . . . . . . . . . . . . ibid.
United States v. Leon,
468 U.S. 897 (1984)
. . . . . . . . . . . . . . . . . . . .
24
United States v. Reid,
929 F.2d 990 (4th Cir.1991)
. . . . . . . . . . . . . . . .
22
. . . . . . . . . . . . . . . . .
22
STATE CASES:
Beylund v. Levi,
859 N.W.2d 403 (N.D. 2015)
Brown v. State,
24 So. 3d 671 (Fla. 5th DCA 2009),
rev. denied, 39 So. 3d 1264 (Fla. 2010)
. . . . . . . . . .
25
. . . . . . . . . . . . .
24
Commonwealth, Department of Transport v. McFarren,
525 A.2d 1185 (Pa. 1987) . . . . . . . . . . . . . . . . . .
23
Butler v. State,
801 So. 2d 992 (Fla. 2d DCA 2001),
cert. denied, 537 U.S. 1055 (2002)
ii
Connor v. State,
803 So. 2d 598 (Fla. 2001),
cert. denied, 535 U.S. 1103 (2002)
. . . . . . . . . . . . . . 7
Dewberry v. State,
905 So. 2d 963 (Fla. 5th DCA 2005)
. . . . . . . . . . . . . . 7
Jackson v. State,
456 So. 2d 916 (Fla. 1st DCA 1984)
. . . . . . . . . . . . .
13
Rowley v. Commonwealth,
629 S.E.2d 188 (Va. Ct. App. 2006)
. . . . . . . . . . . . .
15
Seibert v. State,
923 So. 2d 460 (Fla.),
cert. denied, 549 U.S. 893 (2006)
. . . . . . . . . . . . . . 7
State v. Bernard,
859 N.W.2d 762 (Minn. 2015)
State v. Birchfield,
858 N.W.2d 302 (N.D. 2015)
. . . . . . . . . . . . . . . .
22
. . . . . . . . . . . . . . . . .
22
State v. Caporuscio,
21 Fla. L. Wkly. Supp. 930b (Volusia Cty. May 22, 2014)
State v. Dowdy,
332 S.W.3d 868, 870 (Mo. Ct. App. 2011)
. .
16
. . . . . . . . . .
23
State v. Finnegan,
21 Fla. L. Wkly. Supp. 329a (19th Cir. Oct. 28, 2013)
State v. Geiss,
70 So. 3d 642 (Fla. 5th DCA 2011),
rev. dismissed, 88 So. 3d 111 (Fla. 2012)
. . . .
23
. . . . . . . . . . . . . . . . .
17
State v. Langsford,
816 So. 2d 136 (Fla. 4th DCA 2001)
State v. McNeely,
358 S.W.3d 65 (Mo. 2012)
25
. . . . . . . . 12,14
State v. Hill,
2009 WL 1485026, at *5 (Ohio Ct. App. May 22, 2009)
State v. Johnson,
744 N.W.2d 340 (Iowa 2008)
. . .
. . . . . . . . . . . . .
13
. . . . . . . . . . . . . . . . . .
11
iii
State v. Nickell,
21 Fla. L. Wkly. Supp. 933a (Volusia Cty. May 22, 2014) . . .
16
State v. Payano-Roman,
714 N.W.2d 548 (Wis. 2006),
cert. denied, 549 U.S. 935 (2006)
. . . . . . . . . . . . .
23
. . . . . . . . . . . . . . .
17
State v. Rodriguez,
156 P.3d 771, 781 (Utah 2007)
State v. Slaney,
653 So. 2d 422 (Fla. 3d DCA 1995)
State v. Stalder,
630 So. 2d 1072 (Fla. 1994)
. . . . . . . . . . . . .
13
. . . . . . . . . . . . . . . . . 8
State v. Watt,
946 So. 2d 108 (Fla. 5th DCA 2007),
rev. denied, 51 So. 3d 1156 (Fla. 2010)
. . . . . . . . . .
State v. Williams,
2015 WL 3511222 (Fla. 5th DCA June 5, 2015)
24
. . . . . . . ibid.
State v. Yong Shik Won,
332 P.3d 661 (Haw. Ct. App.),
cert. granted, 2014 WL 2881259 (Haw. June 24, 2014)
. . . 15, 2
State v. Young,
483 So. 2d 31 (Fla. 5th DCA 1985),
rev. dismissed, 517 So. 2d 691 (Fla. 1988)
. . . . . . . . .
15
Wing v. State,
268 P.3d 1105, 1110 (Alaska Ct. App. 2012)
. . . . . . . . .
23
iv
STATEMENT OF THE CASE
The Defendant was charged by information with DUI manslaughter
and vehicular homicide.
(R. 11-12).
He filed a motion to suppress
his blood alcohol test results, contending that the blood draw was
an illegal search.
(R. 43-47).
A hearing was held.
(R. 114-78).
The trial court entered a
written order granting the motion to suppress.
(R. 48-49).
State timely appealed from the trial court’s order.
The
(R. 101).
This Court has jurisdiction pursuant to Rule 9.140(c)((1)(B) of the
Florida Rules of Appellate Procedure.
1
STATEMENT OF FACTS
On August 17, 2012, Corporal Neutzling of the Florida Highway
Patrol was called to the scene of a traffic fatality, arriving at
the scene just before midnight.
(R. 119-20).
The victim had been
riding on the back of the Defendant’s motorcycle and fell from the
motorcycle onto the road when the Defendant changed lanes; the
victim was then run over by another car.
(R. 43).
Trooper Mary Brown (Mary Husic at the time of the crash)
responded to the scene shortly before 11 pm.
spoke to the Defendant at the scene.
pronounced dead at 11:20 pm.
(R. 140-41).
(R. 141).
(R. 141).
She
The victim was
That was the point when
she realized that a blood draw was needed.
(R. 141).
It was not
her responsibility to obtain a warrant – pursuant to FHP policy,
that responsibility rests with the corporal.
(R. 141-42).
The corporal is also responsible for taking measurements,
taking photos, and talking with witnesses.
(R. 142).
Normally
there are two corporals on the scene, but at this scene there was
only one, as there was another fatality that night.
(R. 142).
Trooper Brown took the Defendant back to her patrol car, where
she could smell a strong odor of alcohol when he was talking.
142).
The Defendant was read implied consent and was asked to
voluntarily consent to give his blood, and he refused.
143).
(R.
(R. 130,
He was then told that they would forcibly take his blood, as
allowed under state statute, so the Defendant agreed to comply with
the
blood
draw.
(R.
143).
The
2
blood
draw
took
place
at
approximately 11:30.
(R. 145).
Trooper Brown handed the sealed
blood to the trooper doing the traffic crash investigation and left
the scene to respond to another DUI call.
(R. 145-46).
There happened to be two fatal accidents that evening, so
Corporal Neutzling was the only homicide investigator at the scene
of this accident; usually two investigators are present.
125).
(R. 120,
At a scene like this, there is always an urgency to get the
road back open, both for the use of the public and for officer
safety. (R. 125). Because she was the only homicide investigator,
Neutzling had to make sure she got all the information needed
before the road was opened again.
(R. 125).
The road had to be
shut down until she was done with the investigation.
(R. 130).
Corporal Neutzling testified that obtaining a warrant for a
blood draw would prolong the duration of the investigation.
125).
(R.
The warrant had to be typed up, and then FHP dispatch had to
be contacted to contact the sheriff’s office to find out who the
on-call judge was, and then she would have to get to the judge’s
residence in the middle of the night.
(R. 125-26).
The investigation of the accident scene took two to three
hours, so Neutzling left the scene at approximately 2 or 3 am.
The
homicide unit is not called until a fatality is confirmed, which
happened here at 11:20 pm.
(R. 127-28).
Getting the warrant at 2
am would have been three hours after the crash.
(R. 127).
When Neutzling arrived at the scene, the driver of both
vehicles involved had been identified, the deceased victim had been
3
identified, the possible involvement of intoxication was known, and
the fire department was there attending to the medical needs of
those involved.
(R. 129, 139).
were interviewing the witnesses.
Other law enforcement officers
(R. 130).
There were a lot of
calls that night, so some officers left to respond to those after
the scene was contained.
(R. 134).
As the homicide investigator, Neutzling would be the one who
was required to type up the warrant.
(R. 135-37).
Given the time
frame, it was not feasible for her to do that.
(R. 135-36).
Warrants are not just cut and pasted from existing cases, and she
would need to make sure it was correctly written before she would
wake up a judge at 2 am.
warrants.
(R. 138).
FHP does not have template
(R. 138).
Trooper Brown testified that she did not obtain a warrant for
the blood draw because that was not the procedure at the time, and
because they did not have enough people available to do a warrant
– at that time, they had to type it up (it could not be done
electronically), take it to the on-call judge, then come back to
the scene to do the arrest.
feasible that night.
(R. 147-48).
This was simply not
(R. 148).
Defense counsel stated that he was not challenging that the
officers
had
probable
cause
for
a
blood
draw,
but
was
only
challenging the exigency. (R. 122, 171-72). The trial court found
that a warrant was required, there was no exigency supporting the
4
blood draw without a warrant, and the good faith exception to the
warrant requirement did not apply.
(R. 168-73).
In their arguments at the suppression hearing, the parties and
the court noted that Judge Murphy had just addressed a similar
argument.
(R. 150-66).
That case is pending before this Court in
State v. Liles, case number 5D14-1654.
5
SUMMARY OF ARGUMENT
The trial court erred in granting the Defendant’s motion to
suppress.
The blood draw was proper under Florida’s implied
consent statute, which remains a valid means of securing blood even
after the Supreme Court’s decision in McNeely. Even if the statute
was invalid, the officers acted in good faith reliance on the
statute and Florida case law.
Further, even if the officers could
not rely on this law, the search was reasonable, there were
sufficient exigencies justifying the search without a warrant, and
the search was a valid search incident to lawful arrest.
6
ARGUMENT
THE TRIAL COURT ERRED IN GRANTING
THE DEFENDANT’S MOTION TO SUPPRESS.
A motion to suppress involves mixed questions of law and fact.
See, e.g., Seibert v. State, 923 So. 2d 460, 468 (Fla.), cert.
denied, 549 U.S. 893 (2006); Dewberry v. State, 905 So. 2d 963, 965
(Fla. 5th DCA 2005).
In reviewing the trial court‘s ruling on such
a motion, an appellate court must determine whether competent,
substantial evidence supports the lower court‘s factual findings,
but the trial court's application of the law to the facts is
reviewed de novo.
As the Florida Supreme Court has explained:
The deference that appellate courts afford findings of
fact based on competent, substantial evidence is an
important principle of appellate review.
In many
instances, the trial court is in a superior position “to
evaluate and weigh the testimony and evidence based upon
its observation of the bearing, demeanor, and credibility
of the witnesses.” When sitting as the trier of fact,
the trial judge has the “superior vantage point to see
and hear the witnesses and judge their credibility.”
Appellate courts do not have this same opportunity.
Despite this deference to a trial court's findings of
fact, the appellate court's obligation to independently
review mixed questions of fact and law of constitutional
magnitude is also an extremely important appellate
principle.
This obligation stems from the appellate
court's responsibilities to ensure that the law is
applied uniformly in decisions based on similar facts.
Connor v. State, 803 So. 2d 598, 607-608 (Fla. 2001) (emphasis
added) (quotations and citations omitted), cert. denied, 535 U.S.
1103 (2002).
Here, the State does not dispute that the Defendant did not
voluntarily consent to the blood draw, and instead the draw was
7
ordered by law enforcement acting pursuant to section 316.1933,
Florida Statutes.
The State submits, however, that the trial
court's order is legally erroneous.
Specifically, the court erred in finding that section 316.1933
is unconstitutional and that the trooper could not in good faith
rely on that statute, and, if the Court disagrees with those
arguments, that the trial court erred in finding that the search
was not justified as reasonable and exigent and a lawful search
incident to arrest.
The Implied Consent Statute
In determining the validity of a statute, courts are bound by
the premise that all doubts must be resolved in favor of the
statute’s constitutionality.
See, e.g., State v. Stalder, 630 So.
2d 1072, 1076 (Fla. 1994).
Moreover, if there is any way to
construe the
statute
in
a
constitutional
manner,
it
must
be
construed in such a way, as long as such construction is consistent
with legislative intent and does not effectively rewrite the
statute.
The
Id.
statute
at
issue
here
provides
in
relevant
part
follows:
If a law enforcement officer has probable cause to
believe that a motor vehicle driven by or in the actual
physical control of a person under the influence of
alcoholic beverages, any chemical substances, or any
controlled substances has caused the death or serious
bodily injury of a human being, a law enforcement officer
shall require the person driving or in actual physical
control of the motor vehicle to submit to a test of the
8
as
person’s blood for the purpose of determining the
alcoholic content thereof or the presence of chemical
substances as set forth in s. 877.111 or any substance
controlled under chapter 893.
The law enforcement
officer may use reasonable force if necessary to require
such person to submit to the administration of the blood
test. The blood test shall be performed in a reasonable
manner.
Notwithstanding s. 316.1932, the testing
required by this paragraph need not be incidental to a
lawful arrest of the person.
316.1933(1)(a), Fla. Stat. (emphasis added).
The trial court found that this statute could no longer
justify a blood draw after the Supreme Court’s decision in Missouri
v. McNeely, 133 S.Ct. 1552 (2013).
This conclusion construes
McNeely much too broadly and is contrary to long-standing Florida
law.
Williams
This
Court
is
the
first
in
ramifications of the McNeely decision.
Florida
to
address
the
In State v. Williams, 2015
WL 3511222 (Fla. 5th DCA June 5, 2015), this Court held that a
defendant could be criminally punished for failing to submit to a
breath test as required by the implied consent statute.
In so
holding, this Court concluded that the search involved in these
cases (a test of breath after an arrest for driving under the
influence of alcohol) is reasonable.
Id. at *8-9.
The Williams opinion also considered and rejected a number of
other arguments regarding the effect of McNeely on DUI cases –
arguments that are relevant to the validity of a blood draw in more
serious cases, such as this.
The State submits that while the
9
holding in Williams is ultimately correct, the other discussions in
Williams are not.
To the extent these discussions are deemed to be
binding on the panel considering the instant case, rather than
dicta not essential to the Court’s holding in Williams, the State
submits that the actual ramifications of the McNeely decision will
ultimately need to be addressed by this Court en banc.
McNeely’s Facts & Holding
In McNeely, the defendant was stopped shortly after 2 am,
after an officer observed him speeding and his vehicle repeatedly
crossed the center line.
133 S.Ct. at 1556.
Based on the
defendant’s intoxicated appearance and poor performance on fieldsobriety tests, the officer began to transport him to the police
station, then changed his mind and took the defendant to a nearby
hospital for blood testing when the defendant refused to provide a
breath sample.
Id. at 1557.
The blood sample was drawn less than
30 minutes after the initial stop.
Id.
Nothing in the Supreme Court’s opinion indicates that the
defendant
was
involved
in
an
accident
of
any
sort,
or
that
Missouri’s implied consent law allowed the blood draw to take place
notwithstanding the defendant’s refusing consent. Id. at 1567. In
fact, the opinion from the Missouri Supreme Court specifically
states
that
the
compelled
blood
10
draw
exceeded
the
scope
of
Missouri’s implied consent law.
State v. McNeely, 358 S.W.3d 65,
68 n.2 (Mo. 2012).1
On
certiorari
review,
the
Supreme
Court
addressed
the
following narrow question: “whether the natural dissipation of
alcohol in the bloodstream establishes a per se exigency that
suffices
on
requirement
its
for
investigations.”
own
to
justify
nonconsensual
an
blood
133 S.Ct. at 1558.
exception
testing
to
in
the
warrant
drunk-driving
The Court held that there was
no such per se exigency, and instead DUI cases, like all cases,
need to be evaluated based on the totality of the circumstances.
Id.
Contrary to the conclusion of the court below, McNeely does
not stand for the broad proposition that a warrant is required for
1
McNeely involved a blood draw in a routine DUI case, with no
accident or harm.
McNeely, 358 S.W. 3d at 67-68.
Under the
Missouri implied consent statute, a person can refuse a blood test
under these circumstances, although there are consequences for
doing so. Mo. Rev. Stat. § 577.041. A forced blood draw is not
permissible under the statute in these circumstances.
The
prosecution in that case contended that an amendment to the implied
consent statute removed any barrier to such testing even when the
suspect refused, and allowed a warrantless search under a broad
reading of Schmerber. The Missouri Supreme Court, and ultimately
the United States Supreme Court, disagreed with that argument.
McNeely, 358 S.W.3d at 68 n.2.
Indeed, under Florida law, the defendant’s blood could not
have been drawn under these circumstances either, as a defendant
retains the right to refuse such testing under the implied consent
statute in the absence of death or bodily harm – although there are
certainly penalties for such a refusal. § 316.1932, Fla. Stat.
11
every blood draw.2
Instead, the Court simply recognized that the
totality of the circumstances must be considered in determining
whether the circumstances are sufficiently exigent to justify
acting without a warrant.
Id. at 1563.
Implied Consent after McNeely
The trial court’s order in this case should be reversed
because the blood was properly drawn under Florida’s implied
consent law, which remains valid even after McNeely.
In Schmerber v. California, 384 U.S. 757 (1966), the United
States
Supreme
Court
addressed
whether
permissible search in a DUI case.
a
blood
draw
was
a
After concluding that a blood
draw was a search, the Court went on to hold that blood samples
were permissibly obtained without a warrant where the defendant was
involved in an accident causing injury to himself and his passenger
and there was probable cause to believe he had been drinking and
driving.
Id. at 758 n.2.
Over 45 years passed between the decision in Schmerber and the
Court revisiting this decision in McNeely.
During this time,
implied consent laws were passed across the country in response to
the
broad
decision
in
Schmerber,
giving
individuals
greater
protections by setting up specific circumstances under which a
2
While not directly relevant here, as the instant case
involves a felony, the State notes that in misdemeanor cases in
Florida, it is not possible to lawfully obtain a warrant to search
for blood, breath, or urine. State v. Geiss, 70 So. 3d 642 (Fla.
5th DCA 2011), rev. dismissed, 88 So. 3d 111 (Fla. 2012).
12
person suspected of driving under the influence of alcohol can be
required to submit to breath or blood searches. These laws further
required drivers to consent to such searches under those delineated
circumstances if they chose to accept the privilege of driving.
The United States Supreme Court has yet to accept a single
case challenging such implied consent statutes, as state courts
across the country found these statutes to be constitutional including here in Florida.
See, e.g., State v. Langsford, 816 So.
2d 136, 139 (Fla. 4th DCA 2001); State v. Slaney, 653 So. 2d 422
(Fla. 3d DCA 1995); Jackson v. State, 456 So. 2d 916 (Fla. 1st DCA
1984).
Not until faced with a blood draw taken outside the scope
of the state’s implied consent law did the United States Supreme
Court again consider the propriety of such a search.3
In light of the actual factual situation before the Court,
then, McNeely did not actually consider the propriety of implied
consent statutes, let alone conclude (sub silentio, at that) that
these laws are no longer valid.
Such an issue was simply not
before the Court.
At most, McNeely could be read to hint at the future of
implied consent statutes after its decision, and there is no
indication of any disapproval of these statutes.
Instead, the
Supreme Court specifically recognized that its decision would not
3
Notably, none of the cases cited by the Court as examples of
conflicting decisions on the “per se exigency” rule involved blood
draws under those states’ implied consent statutes either.
McNeely, 133 S.Ct. at 1558 n.2.
13
eviscerate the states’ ability to combat the scourge of drunk
driving, as Missouri contended, because states retain the ability
to secure blood alcohol evidence by acting pursuant to their
implied consent laws:
As an initial matter, States have a broad range of legal
tools to enforce their drunk-driving laws and to secure
BAC
evidence
without
undertaking
warrantless
nonconsensual blood draws. For example, all 50 states
have adopted implied consent laws that require motorists,
as a condition of operating a motor vehicle within the
State, to consent to BAC testing if they are arrested or
otherwise detained on suspicion of a drunk-driving
offense.
McNeely, 133 S.Ct. at 1566 (emphasis added).
This is exactly how
the blood was acquired here – pursuant to Florida’s implied consent
law – a “legal tool” to acquire such evidence.
Florida courts have repeatedly upheld the constitutionality of
Florida’s implied consent law against Fourth Amendment challenges,
as the implied consent law actually provides greater protection to
citizens than that required by the Constitution.
Contrary to this
Court’s discussion in Williams, 2015 WL 3511222 at *6, McNeely in
no way changed this long-standing law.
As this Court has recognized, searches conducted pursuant to
a warrant and searches conducted under the implied consent law are
completely
different,
subject
to
different
different standards of admissibility.
at 646-47.
requirements
and
See, e.g., Geiss, 70 So. 3d
The Defendant stipulated that the State met its burden
under the implied consent law here.
That should be the end of the
inquiry, as McNeely in no way invalidated implied consent laws, but
14
instead noted that these laws provide an additional legal means to
secure blood alcohol evidence.
Under Florida’s implied consent law, a person who accepts the
privilege of operating a motor vehicle is deemed to have consented
to tests of his blood alcohol level.
§ 316.1932(1), Fla. Stat.
By
choosing to exercise the privilege to drive on Florida’s roadways,
the Defendant agreed to give to law enforcement the right to take
his
blood
under
certain
limited
circumstances,
including
as
delineated in section 316.1933.
The Defendant consented to the blood draw when he got behind
the wheel of his car that night, and he had no right to rescind
that legal consent, notwithstanding his lack of cooperation when
faced with the consequences of his actions.
Cf. State v. Young,
483 So. 2d 31 (Fla. 5th DCA 1985) (implied consent gives no legal
right to refuse to be tested, except as choice, with attendant
consequences, is provided in statute itself), rev. dismissed, 517
So. 2d 691 (Fla. 1988); State v. Yong Shik Won, 332 P.3d 661, 68082 (Haw. Ct. App.) (implied consent law is exception to warrant
requirement, survives McNeely), cert. granted, 2014 WL 2881259
(Haw. June 24, 2014); Rowley v. Commonwealth, 629 S.E.2d 188, 191
(Va. Ct. App. 2006) (consent under implied consent law is not
qualified
Amendment;
virtually
or
conditional
“To
allow
nullify
the
it
and
to
is
be
Implied
valid
consent
unilaterally
Consent
under
withdrawn
Law.”);
Fourth
would
Burnett
v.
Municipality of Anchorage, 634 F.Supp. 1029, 1037-38 (D. Alaska)
15
(driver consents to testing under law by operating a car; consent
cannot be legally recanted or withdrawn after being lawfully
arrested for driving while intoxicated), aff’d, 806 F.2d 1447 (9th
Cir. 1986).
See also State v. Nickell, 21 Fla. L. Wkly. Supp. 933a
(Volusia Cty. May 22, 2014) (denying motion to dismiss charge of
refusal to submit to breath testing, rejecting McNeely challenge to
implied consent); State v. Caporuscio, 21 Fla. L. Wkly. Supp. 930b
(Volusia Cty. May 22, 2014) (same).
In short, the Defendant’s blood was taken under Florida’s
implied consent law, a “legal tool” to acquire such evidence, and
McNeely does not apply here.
Exigent Circumstances after McNeely
Even if the blood draw was not proper under the implied
consent
law
–
that
is,
even
if
this
Court
is
prepared
to
specifically find this statute invalid, the trial court’s order
should still be reversed, given the totality of the circumstances.
That alcohol dissipates in the body, negatively affecting the
probative value of the results if there is a significant delay in
testing the blood, is still an important factor to be considered in
determining whether a warrant is required.
1561.
McNeely, 133 S.Ct. at
However, it is not in and of itself sufficient to justify
acting without a warrant in an ordinary DUI case, such as that
before the Court in McNeely.
16
The instant case is no ordinary DUI case, but instead is a DUI
with a fatality – factually analogous to the situation in the
Supreme Court’s decision in Schmerber, 384 U.S. at 758 n.2.
The
Court
in
McNeely
specifically
recognized
that
the
additional “special facts” demonstrated an exigency in Schmerber –
specifically, a delay was incurred because the officer needed to
investigate the accident and transport the injured suspect to the
hospital,
evidencing
that
there
was
no
time
to
seek
out
a
magistrate and secure a warrant before the evidence of the alcohol
content was lost through natural bodily functions.
1560.
133 S.Ct. at
Contrary to the lower court’s decision in the instant case,
the United States Supreme Court had “no doubt” that obtaining a
warrant would be impractical in such circumstances.
Id. at 1561.
Given the dissipation issues, the seriousness of the crime,
and the time necessarily required for investigation, a warrant was
simply not practical.
See also State v. Johnson, 744 N.W.2d 340,
344-45 (Iowa 2008); State v. Rodriguez, 156 P.3d 771, 781 (Utah
2007).
Here, as in Schmerber, this was no simple DUI, but a fatal
accident, requiring investigation of its causes and connection to
the Defendant, and resulting in delay before the Defendant’s blood
could be drawn. As the troopers involved explained at the hearing,
in 2012 the process for getting a warrant required the homicide
investigator to manually prepare a warrant, contact dispatch to
17
find out which judge was on duty, and then actually go out to that
judge’s house in the middle of the night.
While defense counsel portrayed a warrant affidavit as a
simple matter of stringing together a few pro forma sentences, the
experienced homicide investigator explained that proper affidavits
include details of the actual investigation and are not simply a
matter of filling in templates.
Especially when it would require
a judge to be roused at 2 am, the homicide investigator would not
simply throw together an affidavit without conducting a proper
investigation first.
Here, in light of the time of the accident, the complexities
involved in securing a warrant, and the fact that there were
multiple accidents that evening which stretched the resources of
law enforcement, it was simply not feasible to obtain a warrant in
a timely manner, before the natural dissipation of alcohol in the
Defendant’s blood would render such a warrant meaningless.
See
McNeely, 133 S.Ct. at 1563 (expressly recognizing that “exigent
circumstances justifying a warrantless blood sample may arise in
the regular course of law enforcement due to delays from the
warrant application process”).
The troopers involved here specifically testified that they
did not have time to secure a warrant, and this Court must evaluate
this judgment call from the perspective of the reasonable officer
on the scene, “familiar with the mechanics and time involved in the
warrant process in their jurisdiction.”
18
Id. at 1564 n.7.
There
was no testimony presented below in support of the Defendant’s
claim that a warrant could have been simply and timely procured
under these circumstances.
The State submits that the Schmerber rule permitting blood
draws due to the exigencies involved in cases such as this remains
the law even after McNeely – especially where, as here, the
totality of the circumstances demonstrates that obtaining a warrant
in a timely fashion was simply not feasible, and a blood draw was
needed before the evidence was dissipated.
Reasonableness after McNeely and Williams
Even if not justified under the implied consent law or under
the exigencies exception to the warrant requirement, the blood draw
was still proper here.
As this Court expressly recognized in
Williams, the Fourth Amendment does not preclude all searches, but
only those searches that are not reasonable, weighing legitimate
government interests against the degree of the search’s intrusion.
Williams, 2015 WL 3511222 at *8.
Applying that test here, the
search was reasonable.
First,
the
State
unquestionably
has
a
legitimate interest in combating drunk driving.
significant
and
As the McNeely
Court itself recognized, “[n]o one can seriously dispute the
magnitude of the drunken driving problem or the State’s interest in
eradicating it,” as “drunk driving continues to exact a terrible
toll on our society.”
McNeely, 133 So. Ct. at 1565 (quotation
19
omitted).
This case is a classic example of such a terrible toll,
where the victim’s life was taken.
Weighed against this significant government interest is a
lesser individual privacy interest.
Those who choose to exercise
their privilege (not their right) to drive in Florida have a
reduced expectation of privacy in light of the clear statutory
language stating that by doing so they have consented to a search
of their blood under certain limited circumstances – including the
circumstances present here.
In short, drivers are put on express
notice that they can expect some limited police intrusion under
these specific circumstances, and only under the circumstances
delineated in the statute.
Further,
as
the
Supreme
Court
expressly
recognized
in
Schmerber, while a blood draw is of course a search, its level of
intrusion is not untenable under these circumstances:
Extraction of blood samples for testing is a highly
effective means of determining the degree to which a
person is under the influence of alcohol. Such tests are
a commonplace in these days of periodic physical
examination and experience with them teaches that the
quantity of blood extracted is minimal, and that for most
people the procedure involves virtually no risk, trauma,
or pain.
Schmerber, 384 U.S. at 771 (citation and footnotes omitted).
Admittedly, a blood draw is more intrusive than a breath test,
which was found to be reasonable by this Court in Williams, 2015 WL
3511222 at *8-9.
However, a blood draw is allowed under the
implied consent statute only in certain limited circumstances –
20
where there is probable cause to believe a defendant driving under
the influence of alcohol caused a death or serious bodily injury.
In light of this limitation, any increased intrusiveness is more
than counter-balanced by the State’s greater interest, not in a
routine DUI, but in a DUI involving the death of an innocent victim
– where that which the law is designed to prevent has actually come
to fruition.
In light of the limited circumstances under which a blood draw
is permitted, the State’s unquestioned interest in protecting the
public under those circumstances, and the express statutory notice
given
to
drivers
who
choose
to
drink
and
drive
in
Florida,
enforcing the implied consent law is reasonable.
As the United States Supreme Court has recognized:
[W]hen faced with special law enforcement needs,
diminished 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 government custody, that some
reasonable police intrusion on his privacy is to be
expected.
Maryland v. King, 133 S.Ct. 1958, 1969 (2013) (taking DNA sample of
everyone arrested for violent felony was reasonable under Fourth
Amendment, given compelling government interest, probable cause
supporting custody, and negligible bodily intrusion).
21
This Court should apply its decision in Williams to blood
draws
under
the
implied
consent
statute
as
well,
where
the
intrusion is relatively minimal, the driver has already agreed to
the search, probable cause is a prerequisite to any search, and
where such a search is undertaken only in cases involving a
fatality or serious bodily injury.
See also Beylund v. Levi, 859
N.W.2d 403, 412-14 (N.D.) (blood test required under implied
consent law was reasonable), petition for cert., 83 U.S. Law Wkly.
3935 (Jun 22, 2015); State v. Birchfield, 858 N.W.2d 302, 309-10
(N.D.) (penalty for refusing breath test compelled by implied
consent statute was reasonable), petition for cert. filed, 83 U.S.
Law Wkly. 3916 (Jun 12, 2015); Yong Shik Won, 332 P.3d at 679-82 .
Search Incident to a Lawful Arrest
In addition to the grounds discussed above, this Court may
also conclude that the blood draw was valid as a search incident to
a lawful arrest, which allows a search of an arrestee’s person in
order to preserve evidence.
U.S. 332, 335 (2009).
See generally Arizona v. Gant, 556
Admittedly, this argument, too was rejected
in Williams, 2015 WL 3511222 at *6-7, but the State asks this Court
to reconsider that rejection here.
A number of federal and state court have upheld the admission
of breath tests under the search incident to arrest exception.
See, e.g., State v. Bernard, 859 N.W.2d 762, 766-68 (Minn.),
petition for cert. filed, 83 U.S. Law Wkly. 3916 (Jun 15, 2015);
United States v. Reid, 929 F. 2d 990, 994 (4th Cir.1991); Burnett
22
v. Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir. 1986)
(“It is clear then that the breathalyzer examination in question is
an appropriate and reasonable search incident to arrest which
appellants have no constitutional right to refuse.”); Byrd v.
Clark, 783 F.2d 1002, 1005 (11th Cir.1986); Wing v. State, 268 P.3d
1105, 1110 (Alaska Ct. App. 2012); State v. Dowdy, 332 S.W.3d 868,
870 (Mo. Ct. App. 2011); State v. Hill, 2009 WL 1485026, at *5
(Ohio Ct. App. May 22, 2009); Commonwealth, Dep't of Transp. v.
McFarren, 525 A.2d 1185, 1188 (Pa. 1987).
While none of these cases involve a blood draw, the State
submits that the same theory would apply to blood – once a person
is arrested, their right to privacy is significantly diminished,
and they are subject to a search to prevent the destruction of
evidence.
While the arrestee in these cases is not actively
destroying evidence, his body itself is passively destroying it,
and this is a distinction without a difference.
Cf. State v.
Payano-Roman, 714 N.W.2d 548, 559-61 (Wis. 2006) (administering
laxative to defendant who swallowed bag filled with heroin was
reasonable search incident to arrest; officers were justified in
seeking to preserve evidence of crime), cert. denied, 549 U.S. 935
(2006).
Good Faith
Finally, even if McNeely somehow invalidates the statutory
implied consent scheme, despite its express approval of implied
consent laws, suppression should not have been ordered here.
23
The purpose of the exclusionary rule is to deter unlawful
police action.
Where, then, an officer acts in good faith in
executing a search, the fruits of that search are not subject to
exclusion.
As the Unites States Supreme Court has explained, the
exclusionary rule has no deterrent effect when the offending
officers acted in the objectively reasonable belief that their
conduct did not violate the Fourth Amendment.
United States v.
Leon, 468 U.S. 897, 916-19 (1984); State v. Watt, 946 So. 2d 108,
110 (Fla. 5th DCA 2007) (rejecting application of good faith
exception requires a conclusion “that an objectively reasonable
police officer would have a better understanding of the law of ...
probable cause than did the trial judge who issued the warrant”),
rev. denied, 51 So. 3d 1156 (Fla. 2010); Butler v. State, 801 So.
2d 992, 993 (Fla. 2d DCA 2001) (DNA evidence from blood sample was
admissible under good faith exception to exclusionary rule, even
though statute which required DNA testing for certain offenders did
not apply to defendant at time blood was drawn pursuant to search
warrant), cert. denied, 537 U.S. 1055 (2002).
Here, the blood draw took place in compliance with a specific
Florida statute governing such matters, section 316.1933.
As
discussed above, Fourth Amendment challenges to this statute have
been repeatedly rejected in Florida.
Further, blood draws under
these circumstances have been deemed proper for almost 50 years,
since Schmerber was decided.
Even if McNeely is somehow read as
24
invalidating such blood draws, McNeely was decided well after the
blood draw took place here.
Under these circumstances, the officers involved undoubtedly
acted in objectively reasonable reliance on binding law – both
statutory and case law. The good faith exception applies here, and
the blood draw should not have been suppressed.
Cf. Davis v.
United States, 131 S.Ct. 2419, 2429 (2011) (where automobile search
complied with law at the time it was executed, before such a search
was found to be unconstitutional, good faith exception applied;
under such circumstances, “all that exclusion would deter in this
case is conscientious police work”).
See also Brown v. State, 24
So. 3d 671, 681 (Fla. 5th DCA 2009) (“To apply the exclusionary rule
in this case cannot possibly deter police because they did exactly
what they were trained to do based on what we (judges) told them
was appropriate.”), rev. denied, 39 So. 3d 1264 (Fla. 2010); State
v. Finnegan, 21 Fla. L. Wkly. Supp. 329a (19th Cir. Oct. 28, 2013)
(good faith exception should apply in pre-McNeely cases as long as
police were following rule of law as announced in cases and implied
consent scheme; officer was required to draw blood under section
316.1933; officer “would have had no reason to believe that a
statute enacted decades earlier and upheld by Florida’s appellate
courts would subsequently be invalidated by a decision of the
United States Supreme Court”) (emphasis in original).
25
CONCLUSION
Based on the arguments and authorities presented herein,
Appellant respectfully requests this honorable Court reverse the
trial court‘s order granting the Defendant’s motion to suppress.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
/s/ Kristen L. Davenport
KRISTEN L. DAVENPORT
ASSISTANT ATTORNEY GENERAL
Fla. Bar #909130
444 Seabreeze Boulevard
Fifth Floor
Daytona Beach, FL 32118
(386) 238-4990
COUNSEL FOR APPELLANT
DESIGNATION OF EMAIL ADDRESS
Undersigned counsel can be served at the following email
address:
[email protected]
26
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above
Initial Brief has been furnished to Anne Moorman Reeves, counsel
for Appellee, 444 Seabreeze Blvd., Ste. 210, Daytona Beach, Florida
32118,
by
email
to
[email protected]
and
moorman-
[email protected], this 27th day of July, 2015.
CERTIFICATE OF COMPLIANCE
The undersigned counsel certifies that this brief was typed
using 12 point Courier New, a font that is not proportionately
spaced.
/s/ Kristen L. Davenport
Kristen L. Davenport
Counsel for Appellant
27