• Mitchell v. Wisconsin, 588 US ___ (19) #18-6210:
Mitchell was found staggering near a lake and a van. Officers gave him a preliminary breath test which came out 0.24%. They took him to the police station, but he was too “lethargic” to give a breath test. So they drove him to a hospital.
Mitchell lost consciousness on the ride over and had to be wheeled in. The officer read aloud to a slumped Mitchell the standard statement giving drivers a chance to refuse BAC testing. Hearing no response, Jaeger asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC, about 90 minutes after his arrest, was 0.22%.
Mitchell moved to suppress the test, as it was conducted without a warrant. The trail court denied. Eventually the Wisconsin Supreme Court upheld the conviction. The U.S. Supreme Court took the case to decide whether a warrantless blood draw from an unconscious motorist is valid.
Short answer: Yes. When a driver is unconscious, the newly announced “general rule” is that a warrant is not required.
Two previous cases came into the discussion: McNeely 569 US 141 (13) and Schmerber 384 US 757 (66). In the words of the majority opinion (by Alito, J.):
We have also reviewed BAC tests under the “exigent circumstances” exception—which, as noted, allows warrantless searches “to prevent the imminent destruction of evidence.” Missouri v. McNeely, 569 U. S. 141, 149 (2013). In McNeely, we were asked if this exception covers BAC testing of drunk-driving suspects in light of the fact that blood-alcohol evidence is always dissipating due to “natural metabolic processes.” Id., at 152. We answered that the fleeting quality of BAC evidence alone is not enough. Id., at 156. But in Schmerber it did justify a blood test of a drunk driver who had gotten into a car accident that gave police other pressing duties, for then the “further delay” caused by a warrant application really “would have threatened the destruction of evidence.” McNeely, supra, at 152 (emphasis added).
Like Schmerber, this case sits much higher than McNeely on the exigency spectrum. McNeely was about the minimum degree of urgency common to all drunk- driving cases. In Schmerber, a car accident heightened that urgency. And here Mitchell’s medical condition did just the same.
The general rule is now as follows:
[E]xigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.
There is, however, a possible exception!
We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.
For this reason, the case was remanded back to Wisconsin to give Mitchell the opportunity to show these two conditions.
Gotta admit, this is confusing. A defendant would have to show that blood would not have been drawn at the hospital but for the police wanting BAC evidence. So he’d have to prove that a hospital emergency room does not routinely take a blood sample when an unconscious person is brought in for help. Then, step two, he’d have to show police acted unreasonably in ignoring a warrant application due to the “pressing needs” of the situation. Good luck with that, but there you have it.
Why the gymnastics? Justice Thomas, in dissent, argues that it’s because the Court didn’t want to overturn McNeely which was, according to Thomas, wrongly decided (McNeely held that the dissipation of BAC evidence alone was not an exigent circumstance).
In any event, this case did not take up the question of whether Wisconsin’s implied consent law would have allowed the blood draw here. That’s a question currently pending in our own state Supreme Court. See People v. Arredondo, S233582.
Police Spotlighting Parked Car Was a Detention
• KIDD, 36 CA5 12, 248 CR3 234 (19) #E070996:
Officer on patrol observed a car parked on a residential street with its front amber fog lights on. He could see two individuals sitting in the car. He decided to make contact, later explaining “there’s a couple people inside of this car parked on the road at 1:30 in the morning. Maybe I should check to see if they’re stranded, or what exactly they’re doing. If, you know, who they are, if they live here.”
The officer passed the car, made a U-turn, and parked about 10 feet behind the car, which had another car parked about 10 feet in front of it. He pointed two spotlights—one by his driver’s side mirror, the other on the overhead light bar (but not the colored lights)—at the occupied car, and then exited his patrol vehicle.
As he approached, he smelled marijuana. He flashlighted the interior and saw the passenger “attempting to conceal” what he thought were baggies of marijuana. He asked if either of the occupants was on parole or probation. Kidd said he was on probation The officer directed the two occupants to exit the car and to sit in his patrol vehicle while he verified Kidd’s probation terms. While the officer did so, Kidd spontaneously told the officer that there was a firearm inside the car’s center console. The officer confirmed that Kidd was on probation and that he was subject to a search condition. He then searched the car and discovered marijuana, later determined to total 26 ounces, in several different packages; a digital scale; a pistol with the serial number scratched off; a loaded magazine for the pistol; and 142 pills later identified as Alprazolam.
Kidd’s motion to suppress was denied prior to trial, but granted on a later motion to set aside the information, per PC 995. The Court of Appeal, per Raphael, J., affirms.
Taking into account the totality of the circumstances, we find that Kidd was detained when the officer made a U-turn to pull in behind him and trained spotlights on his car. The officer did not block Kidd’s car in, and he did not illuminate his colored emergency lights, so as to unambiguously signal a detention. Nevertheless, motorists are trained to yield immediately when a law enforcement vehicle pulls in behind them and turns on its lights. Regardless of the color of the lights the officer turned on, a reasonable person in Kidd’s circumstances “would expect that if he drove off, the officer would respond by following with red light on and siren sounding . . . .” (People v. Bailey, supra, 176 Cal.App.3d at p. 406.) Moreover, any ambiguity was removed when the officer more or less immediately exited his patrol vehicle and began to approach Kidd’s car. Although the officer’s approach was, according to record, not made in a particularly aggressive or intimidating manner, a reasonable person in Kidd’s circumstances would not have felt free to leave.