The Court of Appeals recently reiterated two principles articulated years ago in State v. Wynia and several other cases in regards to chain of custody. State v. Moore is a DUI case involving a blood draw where not every single person in the chain of custody was subpoenaed, and the defense was also making an argument that the blood vial was not stored properly. The two important notes are as follows:
First, that chain of custody goes to weight of the evidence and not to admissibility. This is an argument that defense attorneys regularly make even though it is very well established and settled case law.
Second, the Court of Appeals reiterates the idea that the government is entitled to a presumption that once evidence is in the hands of the state that we assume that it is handled with regularity UNLESS there is an affirmative showing of bad faith or tampering by the defense. I'm sure we have all had cases where it feels like this threshold showing is a burden upon us as prosecutors, but that is not the case. Our burden is to make a sufficient showing that an exhibit is in the same condition as it was when it was collected, and if we can do that, the presumption is that the evidence/exhibit was handled with regularity. The court cited previous decisions that have stated that the party proffering evidence is not required to eliminate every conceivable possibility that evidence may have been altered. The fact remains that if the defense is going to make the argument that the evidence was mishandled or tampered with, they have to have evidence or information showing why they believe that. Simply not having one of the links in the chain of custody is not sufficient to make that argument.
The Court of Appeals affirmed the district court's decision in allowing the evidence to be presented at trial.
The defendant in this case was sentenced incorrectly for their traffic violation, and the case was remanded for the limited purpose of imposing sentence as an infraction instead of a class C misdemeanor. You can read the entire opinion here: State v Moore
Monday, September 30, 2019
Thursday, June 27, 2019
Mitchell v Wisconsin - Implied Consent and Unconscious Drivers
Today the Supreme Court of the United States issued a plurality opinion on a Wisconsin case dealing with impaired/unconscious drivers and implied consent. In an interesting holding, the decision states that an unconscious driver is almost always an exigent circumstance, and an officer may do a warrantless blood draw under that exception. Here is a quick rundown of the case:
Mitchell was seen getting into his van and driving off after an onlooker observed he seemed "very drunk." Officer found Mitchell down near the lake, stumbling around and intoxicated. After determining that SFSTs would be futile and likely dangerous due to the level of intoxication, Officer had Mitchell blow into a PBT. The PBT result was .24. Officer arrested Mitchell and was taking him to the station for an evidentiary breath test. On the way Mitchell was loosing consciousness and by the time they got there, he was totally passed out drunk. Officer transported Mitchell to the hospital where he ordered a warrantless blood draw based upon the state's implied consent laws that state an unconscious person has not withdrawn their consent for a chemical test after driving.
Mitchell's motion to suppress was denied and he was convicted of Wisconsin's version of DUI. As the case came to the SCOTUS, Wisconsin did not advance any argument based upon exigency. The state actually conceded that it was not an exigency, and only advanced the argument that under implied consent, Mitchell had consented to the blood draw and was therefore not a violation of the Fourth Amendment. Neither party argued exigency, and the Court seemed to sua sponte advance the exigency argument it settled with the holding.
One thing the Court makes clear, however, is that BAC tests are searches. This follows the reasoning in prior cases, including the prior Birchfield case where breath tests were upheld without a warrant as searches incident to arrest.
Here are some important statements from the Court:
"Today, we consider what police officers may do in a narrow but important category of cases: this in which the driver is unconscious and therefore cannot be given a breath test. In such cases, we hold, the exigent-circumstances rule almost always permits a blood test without a warrant."
Later:
"Thus, when a driver is unconscious, the general rule is that a warrant is not needed."
And in its concluding remarks:
"When police have probable cause to believe a person has committed a drunk-driving offense and the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer and standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending the Fourth Amendment."
Justice Thomas' concurrence, which put the plurality over the top, would have us overturn McNeely where the Court previously stated that the natural dissipation of alcohol in the body over time alone is not an exigency without other factors in play. Justice Thomas dissented to that notion then, and reaffirmed his dissent to that principle in his concurrence with the result. He would have all DUI cases be able to have a warrantless blood draw under the exigency doctrine due to the natural dissipation of alcohol in the body.
Two dissents were written in the case. One by Justice Sotomayor, which was joined by Justices Ginsburg and Kagan. Justice Gorsuch also wrote a dissenting opinion.
The short version of this holding is that the Court ignored the implied consent argument, and held that the warrantless blood test of an unconscious person where an officer has probable cause that the person was DUI is almost always permissible under the Fourth Amendment. This is the general rule. The Court left open a small possibility that a driver in individual cases could show exigency did not apply, and that is why the case was remanded back to Wisconsin state courts to go through those proceedings.
Here is a link to the opinion: Mitchell v. Wisconsin
As always, please let me know if you have questions or concerns.
Tyson
Mitchell was seen getting into his van and driving off after an onlooker observed he seemed "very drunk." Officer found Mitchell down near the lake, stumbling around and intoxicated. After determining that SFSTs would be futile and likely dangerous due to the level of intoxication, Officer had Mitchell blow into a PBT. The PBT result was .24. Officer arrested Mitchell and was taking him to the station for an evidentiary breath test. On the way Mitchell was loosing consciousness and by the time they got there, he was totally passed out drunk. Officer transported Mitchell to the hospital where he ordered a warrantless blood draw based upon the state's implied consent laws that state an unconscious person has not withdrawn their consent for a chemical test after driving.
Mitchell's motion to suppress was denied and he was convicted of Wisconsin's version of DUI. As the case came to the SCOTUS, Wisconsin did not advance any argument based upon exigency. The state actually conceded that it was not an exigency, and only advanced the argument that under implied consent, Mitchell had consented to the blood draw and was therefore not a violation of the Fourth Amendment. Neither party argued exigency, and the Court seemed to sua sponte advance the exigency argument it settled with the holding.
One thing the Court makes clear, however, is that BAC tests are searches. This follows the reasoning in prior cases, including the prior Birchfield case where breath tests were upheld without a warrant as searches incident to arrest.
Here are some important statements from the Court:
"Today, we consider what police officers may do in a narrow but important category of cases: this in which the driver is unconscious and therefore cannot be given a breath test. In such cases, we hold, the exigent-circumstances rule almost always permits a blood test without a warrant."
Later:
"Thus, when a driver is unconscious, the general rule is that a warrant is not needed."
And in its concluding remarks:
"When police have probable cause to believe a person has committed a drunk-driving offense and the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer and standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending the Fourth Amendment."
Justice Thomas' concurrence, which put the plurality over the top, would have us overturn McNeely where the Court previously stated that the natural dissipation of alcohol in the body over time alone is not an exigency without other factors in play. Justice Thomas dissented to that notion then, and reaffirmed his dissent to that principle in his concurrence with the result. He would have all DUI cases be able to have a warrantless blood draw under the exigency doctrine due to the natural dissipation of alcohol in the body.
Two dissents were written in the case. One by Justice Sotomayor, which was joined by Justices Ginsburg and Kagan. Justice Gorsuch also wrote a dissenting opinion.
The short version of this holding is that the Court ignored the implied consent argument, and held that the warrantless blood test of an unconscious person where an officer has probable cause that the person was DUI is almost always permissible under the Fourth Amendment. This is the general rule. The Court left open a small possibility that a driver in individual cases could show exigency did not apply, and that is why the case was remanded back to Wisconsin state courts to go through those proceedings.
Here is a link to the opinion: Mitchell v. Wisconsin
As always, please let me know if you have questions or concerns.
Tyson
Thursday, April 11, 2019
Community Caretaker - State v. Malloy
*Update - January 2021 - This case was heard on appeal and the Utah Supreme Court gave updated guidance on the issue, it can be seen here: http://upc-tsrp.blogspot.com/2021/01/state-v-malloy-update-to-view-on.html I'm leaving the prior analysis up for historical purposes.
The issue of this case is boiled down simply by the court: "[W]hether having lawfully detained [a suspect] on suspicion of impaired driving, the officer violated the Fourth Amendment by opening the car door."
A concerned citizen had called in a DUI crash in a parking lot. The citizen informant had reported that a driver had fell asleep and then hit a light pole. He woke up, began to back out, and fell asleep again. Officer arrived and parked his patrol car behind the suspect's car, essentially blocking him from backing out any further or moving anywhere. Officer observed suspect slumped and slouched over in the driver's seat unconscious. Officer opened the door to check on the suspect, and suspect awoke. Officer observed drug paraphernalia on the floor between suspect's feet when he opened the door. Suspect made admissions about taking narcotics, showed many indications of impairment on SFSTs, and was arrested for DUI. Suspect also ended up being charged for possession of heroin that was discovered in a search incident to arrest.
Defendant argued that the opening of the door of the car was a violation of his Fourth Amendment rights. Defendant argued that officer should have knocked on the window first to determine if this was a true emergency that required the officer opening the door. The State argued and the District Court agreed that this was permissible under the "emergency aid" exception to the warrant requirement, and the motion to suppress was denied.
The Court of Appeals did not reach a decision whether the emergency aid exception applied here. The Court of Appeals affirmed the District Court's order on the basis that opening the car door was a permissible act under a lawful Terry stop, and therefore no warrant would be required.
In citing State v James, 2000 UT 80, the Court of Appeals articulated that opening a door as part of a lawful Terry stop to investigate the driver is not akin to opening a door to investigate the vehicle, and therefore, the additional step of obtaining a warrant is not necessary. In James, the opening of a door as part of a lawful detention to investigate the driver himself was an incidental factor in the investigation of the driver's impaired condition. This seemed to be the important designation of the case. Because the officer was investigating the driver and not searching the car itself for evidence, the opening of the door was not a Fourth Amendment violation and an incidental factor in the otherwise lawful investigation.
You can find the case here if you'd like to read it: State v. Malloy
A concerned citizen had called in a DUI crash in a parking lot. The citizen informant had reported that a driver had fell asleep and then hit a light pole. He woke up, began to back out, and fell asleep again. Officer arrived and parked his patrol car behind the suspect's car, essentially blocking him from backing out any further or moving anywhere. Officer observed suspect slumped and slouched over in the driver's seat unconscious. Officer opened the door to check on the suspect, and suspect awoke. Officer observed drug paraphernalia on the floor between suspect's feet when he opened the door. Suspect made admissions about taking narcotics, showed many indications of impairment on SFSTs, and was arrested for DUI. Suspect also ended up being charged for possession of heroin that was discovered in a search incident to arrest.
Defendant argued that the opening of the door of the car was a violation of his Fourth Amendment rights. Defendant argued that officer should have knocked on the window first to determine if this was a true emergency that required the officer opening the door. The State argued and the District Court agreed that this was permissible under the "emergency aid" exception to the warrant requirement, and the motion to suppress was denied.
The Court of Appeals did not reach a decision whether the emergency aid exception applied here. The Court of Appeals affirmed the District Court's order on the basis that opening the car door was a permissible act under a lawful Terry stop, and therefore no warrant would be required.
In citing State v James, 2000 UT 80, the Court of Appeals articulated that opening a door as part of a lawful Terry stop to investigate the driver is not akin to opening a door to investigate the vehicle, and therefore, the additional step of obtaining a warrant is not necessary. In James, the opening of a door as part of a lawful detention to investigate the driver himself was an incidental factor in the investigation of the driver's impaired condition. This seemed to be the important designation of the case. Because the officer was investigating the driver and not searching the car itself for evidence, the opening of the door was not a Fourth Amendment violation and an incidental factor in the otherwise lawful investigation.
You can find the case here if you'd like to read it: State v. Malloy
Monday, February 11, 2019
Extension of the Scope - State v. Miller
The Utah Court of Appeals recently released its opinion in State v. Miller, which is a case about extending the scope of a traffic stop.
Facts:
Defendant was stopped for going 70 mph in a 65 mph zone, a fact that the Trooper acknowledged he usually does not stop people for, but will many times on drivers with out of state plates due to possible drug trafficking activity. Trooper asked Defendant to come back to the patrol car with him. Trooper stated he does this about 90% of the time for two purposes: 1- sometimes he needs additional information to process the stop and this takes away the need to walk back and forth between vehicles; and 2- so Trooper can potentially gain additional reasonable suspicion while actively filling out the citation. Defendant had a noticeable limp as he walked back to Trooper's car, but did not take an "excessive amount of time." After Defendant got into Trooper's car, Trooper asked Defendant, "What'd you do to your ankle?" Trooper walked around to his side of the car after Defendant's response.
Over the next 7 minutes the two conversed about things other than the stop, but Trooper was actively filling out the citation this entire time. Most of the small talk was initiated by Defendant during this period. Trooper had finished all but one portion of the citation before asking dispatch to run a records check on Defendant. Trooper deployed a K9 while waiting for the records check, including a Triple I to come back. About 60 seconds after the dispatch, but before dispatch reported back the records check, the K9 alerted to the presence of a controlled substance. It was "several minutes" after the alert that dispatch finally reported back the criminal history check. 71 pounds of marijuana were found in the car and Defendant was charged with Possession with intent to distribute, along with the speeding violation. Defendant filed a motion to suppress evidence based upon the extension of the scope of the stop.
The question addressed at the district court level was whether the unrelated investigations, including the some of the questioning not related to the speeding violation and the dog sniff, extended the scope of the stop for speeding. The district court denied the motion to suppress, Defendant pleaded guilty and appealed based upon both the Utah and United States constitutions. The court of appeals noted that the state constitutional argument was not sufficiently briefed, so the analysis proceeded based upon the federal issues only.
Issues:
Defendant argued that Trooper illegally extended the scope of the stop in the following three ways: 1- Asking defendant to walk back to the patrol car; 2- engaging him in unrelated questioning before and during the citation process; and 3- waiting to run a criminal history check until later in the stop.
Asking Defendant to Walk Back to Patrol Car:
It is long established case law that an officer may ask occupants of vehicles to exit for officer safety purposes. Courts have long held that traffic stops are "especially fraught with danger to police officers" and "an officer may take certain negligible burdensome precautions in order to complete his mission safely." (internal cites omitted) The court held that the additional request to come back and sit in the patrol car follows this same line of reasoning, and does not require any further reasonable articulable suspicion.
Unrelated Questioning:
The court of appeals acknowledged the Supreme Court has held that officers may ask questions unrelated to the purpose of the traffic stop so long as those inquiries do not measurably extend the duration of the stop. So the ultimate question here is not whether the questioning is always related to the scope of the stop, but if it adds time to the stop. The court acquiesced that there was a de minimis extension in the time it would have taken to complete the stop if some of the questioning would not have happened. We have previous case law stating that even de minimis extension after the scope of the stop is finished. The Court here makes the distinction of when the de minimis extension takes place. Here, this was while the citation process was being completed, whereas prior cases the de minimis extension took place after the stop had been completed. This is an important distinction for this issue, and the court held that Trooper's unrelated questioning did not illegally extend the scope of the stop.
Records Check:
Defendant argued that Trooper's waiting to ask for the record check until that portion of the citation process was just an attempt to get "bonus time" to do other things while dispatch was conducting the criminal history check. Defendant argued that this needs to take place at the beginning so dispatch can be doing the records check while Trooper was filling out the citation. While the court agreed that there could be more efficient ways of completing the citation process, the ultimate issue is whether Trooper "pursued his investigation in a diligent and reasonable manner, not whether the investigation may have been accomplished by a less intrusive means." The court held that Trooper's actions were diligent, and even more important under a 4th Amendment analysis, that they were reasonable. As such, the dog sniff while waiting on the records check results to come back was permissible. Importantly on this issue, the court uses language and other decisions to say that a background check is a "mission-related activity," it could not unlawfully prolong the stop regardless of the order an officer completes each task. This is not new language, but reinforces what was existing in case law and is helpful for officers.
Ultimately, the court rejected all of Defendant's arguments and affirmed the district court's denial of Defendant's motion to suppress. The dissent in this case is worth reading, but seems to ignore several prior precedents in the analysis. It seems the dissent felt this stop was simply a pretext stop and that should not be allowed, even though our courts have rejected that principle pretty clearly.
The full decision can be found here: State v. Miller
Facts:
Defendant was stopped for going 70 mph in a 65 mph zone, a fact that the Trooper acknowledged he usually does not stop people for, but will many times on drivers with out of state plates due to possible drug trafficking activity. Trooper asked Defendant to come back to the patrol car with him. Trooper stated he does this about 90% of the time for two purposes: 1- sometimes he needs additional information to process the stop and this takes away the need to walk back and forth between vehicles; and 2- so Trooper can potentially gain additional reasonable suspicion while actively filling out the citation. Defendant had a noticeable limp as he walked back to Trooper's car, but did not take an "excessive amount of time." After Defendant got into Trooper's car, Trooper asked Defendant, "What'd you do to your ankle?" Trooper walked around to his side of the car after Defendant's response.
Over the next 7 minutes the two conversed about things other than the stop, but Trooper was actively filling out the citation this entire time. Most of the small talk was initiated by Defendant during this period. Trooper had finished all but one portion of the citation before asking dispatch to run a records check on Defendant. Trooper deployed a K9 while waiting for the records check, including a Triple I to come back. About 60 seconds after the dispatch, but before dispatch reported back the records check, the K9 alerted to the presence of a controlled substance. It was "several minutes" after the alert that dispatch finally reported back the criminal history check. 71 pounds of marijuana were found in the car and Defendant was charged with Possession with intent to distribute, along with the speeding violation. Defendant filed a motion to suppress evidence based upon the extension of the scope of the stop.
The question addressed at the district court level was whether the unrelated investigations, including the some of the questioning not related to the speeding violation and the dog sniff, extended the scope of the stop for speeding. The district court denied the motion to suppress, Defendant pleaded guilty and appealed based upon both the Utah and United States constitutions. The court of appeals noted that the state constitutional argument was not sufficiently briefed, so the analysis proceeded based upon the federal issues only.
Issues:
Defendant argued that Trooper illegally extended the scope of the stop in the following three ways: 1- Asking defendant to walk back to the patrol car; 2- engaging him in unrelated questioning before and during the citation process; and 3- waiting to run a criminal history check until later in the stop.
Asking Defendant to Walk Back to Patrol Car:
It is long established case law that an officer may ask occupants of vehicles to exit for officer safety purposes. Courts have long held that traffic stops are "especially fraught with danger to police officers" and "an officer may take certain negligible burdensome precautions in order to complete his mission safely." (internal cites omitted) The court held that the additional request to come back and sit in the patrol car follows this same line of reasoning, and does not require any further reasonable articulable suspicion.
Unrelated Questioning:
The court of appeals acknowledged the Supreme Court has held that officers may ask questions unrelated to the purpose of the traffic stop so long as those inquiries do not measurably extend the duration of the stop. So the ultimate question here is not whether the questioning is always related to the scope of the stop, but if it adds time to the stop. The court acquiesced that there was a de minimis extension in the time it would have taken to complete the stop if some of the questioning would not have happened. We have previous case law stating that even de minimis extension after the scope of the stop is finished. The Court here makes the distinction of when the de minimis extension takes place. Here, this was while the citation process was being completed, whereas prior cases the de minimis extension took place after the stop had been completed. This is an important distinction for this issue, and the court held that Trooper's unrelated questioning did not illegally extend the scope of the stop.
Records Check:
Defendant argued that Trooper's waiting to ask for the record check until that portion of the citation process was just an attempt to get "bonus time" to do other things while dispatch was conducting the criminal history check. Defendant argued that this needs to take place at the beginning so dispatch can be doing the records check while Trooper was filling out the citation. While the court agreed that there could be more efficient ways of completing the citation process, the ultimate issue is whether Trooper "pursued his investigation in a diligent and reasonable manner, not whether the investigation may have been accomplished by a less intrusive means." The court held that Trooper's actions were diligent, and even more important under a 4th Amendment analysis, that they were reasonable. As such, the dog sniff while waiting on the records check results to come back was permissible. Importantly on this issue, the court uses language and other decisions to say that a background check is a "mission-related activity," it could not unlawfully prolong the stop regardless of the order an officer completes each task. This is not new language, but reinforces what was existing in case law and is helpful for officers.
Ultimately, the court rejected all of Defendant's arguments and affirmed the district court's denial of Defendant's motion to suppress. The dissent in this case is worth reading, but seems to ignore several prior precedents in the analysis. It seems the dissent felt this stop was simply a pretext stop and that should not be allowed, even though our courts have rejected that principle pretty clearly.
The full decision can be found here: State v. Miller
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