By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The U.S. Supreme Court has agreed to hear two cases—one from Missouri, the other from Florida—that will have a significant impact on nation’s criminal justice system, regardless of how the court ultimately decides the cases. The High Court in Missouri v. McNeely will decide whether evidence obtained by a nonconsensual and warrantless blood sample from a suspected drunk driver is admissible under the exigent circumstances exception to the Fourth Amendment warrant requirement based solely upon the natural dissipation of alcohol in the bloodstream; and in Jardines v. Florida will decide whether a “dog sniff” by a police canine at a private residence is a search itself requiring a warrant supported by probable cause. Both of these state’s supreme courts answered these questions in the affirmative.
THE McNEELY CASE
In 1966 the U.S. Supreme Court in Schmerber v. California issued a landmark ruling that offered a limited exception to the “warrant requirement” in certain alcohol-related arrests; namely, if certain “special facts” created a reasonable belief by the arresting officer that he faced an “emergency situation” which, if delayed, could result in to the destruction of evidence, he did not have to obtain a warrant before taking a blood sample. The argument was that this kind of emergency situation exists in some DWI cases because the percentage of alcohol in the blood stream quickly diminishes once the consumption of alcohol ceases; thus, an arresting officer does not always have time to find a judge or magistrate to issue a warrant because of exigent circumstances.
Tyler McNeely’s truck was stopped shortly after 2:00 a.m. by a Missouri state highway patrolman in a routine traffic stop. McNeely exhibited signs of intoxication—bloodshot eyes, slurred speech and the smell of alcohol on his breath. The routine traffic stop shifted to a DWI investigation with the officer asking McNeely to exit the truck in order to perform a “standard field-sobriety test.” McNeely failed this preliminary alcohol detection test resulting in the officer placing him under arrest for “driving while intoxicated.” Once he had placed McNeely in the patrol vehicle, the officer asked him if he would consent to a breath test. McNeely refused. The suspect was then driven to a local hospital by the arresting officer where he was asked to consent to a “blood draw.” Again, McNeely refused. The officer instructed a phlebotomist to draw a sample of McNeely’s blood for alcohol testing without first obtaining a search warrant. This was done at 2:33 a.m. The test results indicated a level of alcohol exceeding the legal limit.
McNeely’s attorney filed a motion to suppress the results of the blood test contending the nonconsensual and warrantless blood draw violated his client’s Fourth Amendment rights. The trial court agreed, suppressing the forced blood draw evidence. In deciding the motion, the trial court heard testimony from the arresting officer that he had 17 years of experience and had previously obtained warrants when he needed a blood draw. However, he testified that in McNeely’s case he did not seek a warrant because he had just read an article in Traffic Safety News by a “traffic resource prosecutor” who said officers no longer need a warrant before securing a nonconsensual blood draw under Missouri’s “implied consent law.”
The issue squarely before the Missouri Supreme Court was “whether the natural dissipation of blood-alcohol evidence is alone a sufficient exigency to dispense with the warrant requirement under the Fourth Amendment.”
Exigent circumstances exist under the three primary conditions: endangerment to life, opportunity for suspect to escape, or the risk of the destruction of evidence. The Schmerber court said such circumstances trigger two competing interests: the Fourth Amendment right of an individual to be secure from unreasonable searches and seizures on his person, house, papers, and effects versus society’s interest in discovering and eliminating criminal conduct.
The Missouri Supreme Court noted that the officer in the Schmerber case faced entirely different circumstances than those faced by the officer in McNeely’s case. The defendant in the Schmerber case was driving a vehicle that skidded off the road, injuring him and a passenger, both of whom were transported to a local hospital. The officer arrested the defendant at the hospital and directed a physician to take a sample of the defendant’s blood which revealed he was intoxicated. The defendant objected to this evidence at trial, saying it was seized pursuant to a warrantless search in violation of the Fourth Amendment.
The U.S. Supreme Court made two significant findings in Schmerber: that the drawing of an individual’s blood for evidentiary purposes implicated the Fourth Amendment and that under ordinary circumstances a warrant must be obtained before a nonconsensual blood draw can be performed. The High Court, however, carved out a limited exception to the warrant requirement for blood draws in alcohol-related cases: that a delay in obtaining a warrant risked the destruction of evidence. The Court then cautioned that there must be “special facts” as in the Schmerber case to avoid the warrant requirement: an officer facing the time necessary to get the defendant and his passenger to a hospital along with time needed to investigate a traffic accident scene.
In the McNeely case, the State tried to stretch Schmerber as “broad authority to direct medical professionals to conduct warrantless and nonconsensual blood draws on DWI defendants on mere probable cause of intoxication.” The State premised its argument on the theory that the dissipation rate of blood-alcohol evidence alone should be an exigency sufficient to circumvent the warrant requirement in alcohol-related cases. This argument has been rejected in a number of other states; Utah and Iowa, for example. The Missouri Supreme Court elected to follow the lead of these two states, rejecting the State’s argument (which has been accepted by courts in some states) saying: “This Court cannot agree with these interpretations of Schmerber. In Schmerber, the Supreme Court rejected a per se exigency and explicitly warned against such expansive interpretations.”
The issue before the U.S. Supreme Court then is essentially whether the dissipation rate of blood-alcohol evidence, standing alone, is sufficient probable cause to justify the intrusion into a person’s body without a warrant.
THE JARDINES CASE
In 2006 the Miami-Dade County Police Department received an unverified “crime stoppers” tip that the home of Joelis Jardines was being used as what police refer to as a “hydroponic marijuana grow house.” A month later two detectives, accompanied by a drug detection dog, went to the residence where they observed it for signs of a hydroponic marijuana grow house: blinds closed, no observable human activity, high intensity light bulbs burning, A/C running without cycling off, and no vehicles in the driveway. With the drug detection dog on its leash, its handler approached the front door of the residence where it “alerted to the scent of contraband.” Based on this information, the detectives prepared an affidavit for a search warrant which was issued.
Against this factual backdrop, the Florida Supreme Court faced two related issues: first, whether a “sniff test” by a drug detection dog at the front door of a residence is a search itself under the Fourth Amendment, and, second, if so, whether the evidentiary showing of wrongdoing necessary for the police to conduct this type of search is probable cause or reasonable suspicion. The Court concluded:
“First, the ‘dog sniff’ that was conducted in the present case was an intrusive procedure … the ‘sniff test’ was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement agencies. On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene activity—i.e., the preparation for the ‘sniff test,’ the test itself, and the aftermath, which culminated in the full-blown search of Jardines’ home—lasted for hours. The ‘sniff test’ apparently took place in plain view of the general public. There was no anonymity for the resident.
“Such a public spectacle unfolding in a residential neighborhood will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident, for such dramatic government activity in the eyes of many—neighbors, passers-by, and the public at large—will be viewed as an official accusation of crime. Further, if government agents can conduct a ‘dog sniff’ at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim or fancy, at the home of any citizen. Such an open-ended policy invites overbearing and harassing conduct. Accordingly, we conclude that a ‘sniff test,’ such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a ‘search’ within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing.
“And second, we note that the parties in the present case have failed to point to a single case in which the United States Supreme Court has indicated that a search for evidence for use in a criminal prosecution, absent special needs beyond the normal need of law enforcement, may be based on anything other than probable cause. We assume that this is because … all that Court’s precedent in this area indicates just the opposite. And that precedent, we recognize, applies with extra force where the sanctity of the home is concerned. Accordingly, we conclude that probable cause, not reasonable suspicion, is the proper evidentiary showing of wrongdoing that the government must make prior to conducting a dog ‘sniff test’ at a private residence.”
If the U.S. Supreme Court adheres to the deferential federal standard generally applied to decisions rendered by state supreme courts, it will uphold the decisions by the Missouri and Florida supreme courts. However, if the Court believes that either or both of the decisions run counter to its Fourth Amendment jurisprudence, it will vacate those decisions and impose its own constitutional will. Regardless of how the High Court rules, but especially if the Court upholds the lower courts, it will have a significant impact on law enforcement efforts and individual privacy rights in this country.
From a criminal defense perspective, we feel that law enforcement has assumed too much “police power” in its crime prevention and detection efforts, especially in the “war” on drugs. In cases of search and seizures, the police should, as the Florida Supreme Court said, be required to have sufficient probable cause of criminal wrongdoing before they can secure a warrant, especially when it comes to a “dog sniff” of someone’s home; and the police should not, as the Missouri Supreme Court said, be allowed to invade the privacy of someone’s body in alcohol-related cases without a warrant simply because the dissipation rate of alcohol in the blood stream.
The prohibition against unreasonable searches and seizures in our society should not be undermined simply because the police have a “reasonable suspicion” of criminal activity. There should, and must be, a showing of probable cause above the mere reasonable suspicion of a law enforcement officer. Anything less puts us closer to a police-controlled state which in many respects since 9/11 we have become.
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization