THOMAS M. DiGIROLAMO, Magistrate Judge.
This matter is before the Court on Defendant's Motion to Suppress Search and Seizure. ECF Nos. 14, 15. On July 10, 2014, a hearing was held at which United States Park Police ("USPP") Officer Charles Barner and Defendant testified. The parties thereafter filed supplemental briefs. ECF Nos. 16, 17. For the reasons stated below, Defendant's Motion (ECF No. 14) is
On August 17, 2013, at about midnight, Officer Barner was driving his fully marked USPP cruiser eastbound on the Suitland Parkway, west of the intersection with Naylor Road, an area within the special maritime and territorial jurisdiction of the United States. At that location the Suitland Parkway consists of three lanes—two for through traffic and a right-turn lane to turn south onto Naylor Road. While Officer Barner was in the right-turn lane, he observed a vehicle ahead of him in the left through lane travelling at a high rate of speed. Officer Barner decided to make a traffic stop of that vehicle. Before moving to the left to pursue that vehicle, Officer Barner activated his overhead lights and looked behind to make sure it was safe for him to move to the left. At that point he observed Defendant's vehicle approaching from the rear in the right through lane. Defendant maintained his lane and speed as he passed Officer Barner's cruiser, coming to within one to one and a half feet of striking the front end of the police cruiser. After Defendant passed the cruiser, Officer Barner pulled in behind Defendant. Officer Barner intended to stop Defendant to inform him that it was unsafe to pass the officer as he did.
After pursuing Defendant's vehicle for about five minutes, Officer Barner ultimately stopped him in the District of Columbia and, after directing him to exit his vehicle, handcuffed and searched him. Because Officer Barner detected an odor of alcohol from Defendant, the officer conducted a horizontal-gaze nystagmus test on Defendant. As a result of Defendant's performance on the test, Officer Barner arrested him and placed him in the back of his cruiser. Defendant's vehicle was impounded.
Officer Barner transported Defendant to the District 5 station, which took about seven to ten minutes, where Defendant's handcuffs were removed and, according to Defendant, he passed other field sobriety tests. According to the officer, following a twenty-minute observation period in the processing area, he read to Defendant the following USPP Form 21C ("Form 21C") while they were seated at a desk:
Gov't Ex. 1. Below these paragraphs on the form, a section titled "
According to Defendant, Officer Barner did not read the form to him. Rather, the officer told him that it would be illegal not to take the test and that there would be ramifications for failing to do so. In any event, Officer Barner gave the form to Defendant and instructed him to read it. After Defendant complied, Officer Barner explained that he was testing only Defendant's breath, discussed the three boxes on the form, and directed him to check one of the boxes and sign the form with a pen provided to Defendant.
Defendant checked the box marked "I Will Submit To Testing," although at the hearing he did not recall doing so. According to Officer Barner, he did not direct Defendant to check the box. Defendant and Officer Barner then completed and signed the form. After Officer Barner instructed Defendant on how to perform the breath test, he submitted to the breath test by blowing into a mouthpiece with a tube attached to an Intoximeter 5000. As a result of the breath test, Defendant was charged with, among other offenses, driving under the influence of alcohol in violation of 36 C.F.R. § 4.23(a)(1) and (2).
Defendant seeks to have the breath test in this case suppressed because the police failed to obtain a warrant prior to administering the test. Def.'s Mem. Supp. Mot. Suppress 1-6, ECF No. 15. Specifically, Defendant maintains that the warrantless breath test in this case does not fall within any of the following recognized exceptions to the warrant requirement: exigent circumstances, consent, or search incident to arrest. Id. at 2-6.
Title 36 C.F.R. § 4.23 provides:
36 C.F.R. § 4.23 (emphasis added). Section 4.23(c)(2) is a substantive offense. United States v. Francisco, 413 F. App'x 216, 219 (11th Cir. 2011) (per curiam) (citing United States v. Brown, 364 F.3d 1266, 1268-69 (11th Cir. 2004)). Indeed, a person can be charged under § 4.23(c)(2) with refusal and face a penalty of up to 6 months' incarceration and/or a fine of up to $5,000.00. 18 U.S.C. §§ 19, 3559(a)(7), 3571(b)(6); 36 C.F.R. § 1.3(a).
Title 18 U.S.C. § 3118 further provides:
18 U.S.C. § 3118 (emphasis added).
The Supreme Court in Missouri v. McNeely, 133 S.Ct. 1552, 1566 (2013) (plurality opinion), noted that implied-consent laws, which "require motorists, as a condition of operating a motor vehicle within the State, to consent to [blood alcohol concentration] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense," are legal tools that states have to enforce their drunk-driving laws. "By using this `legal tool' and revoking a driver's license for refusing a test, [the Government] is . . . conditioning the privilege of driving on agreeing to a warrantless search." State v. Brooks, 838 N.W.2d 563, 572 (Minn. 2013), cert. denied, 134 S.Ct. 1799 (2014). Thus, "[i]t is clear that an individual may be compelled to take a chemical test so long as there are reasonable grounds to believe that the person was driving a motor vehicle while under the influence of alcohol or drugs." United States v. Sauls, 981 F.Supp. 909, 913 (D. Md. 1997).
Defendant maintains that, in light of McNeely, Officer Barner was required to obtain a warrant prior to administering the breath test. However,
State v. Won, ___ P.3d ___, No. CAAP-12-0000858, 2014 WL 1270615, at *18 (Haw. Ct. App. May 2, 2014), cert. granted, No. SCWC-12-0000858, 2014 WL 2881259 (Haw. June 24, 2014).
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. The Supreme Court has recognized that
Maryland v. King, 133 S.Ct. 1958, 1969 (2013) (alteration in original). The Fourth Amendment has been applied in cases involving police efforts to scrape an arrestee's fingernails to obtain trace evidence, see Murphy, supra, to draw blood, see McNeely, supra; Schmerber, supra, and to use a buccal swab on the inner tissues of a person's cheek in order to obtain DNA samples. See King, supra. Most important for the purposes of this case, the Supreme Court has held that the Fourth Amendment applies to a breathalyzer test. King, 133 S. Ct. at 1969 (citing Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 1413 (1989)). However, "[u]nlike blood tests, breath tests do not require piercing the skin and may be conducted safely outside a hospital environment and with a minimum of inconvenience or embarrassment. Further, breath tests reveal the level of alcohol in the . . . bloodstream and nothing more." Skinner, 489 U.S. at 625, 109 S. Ct. at 1418. "[B]reath tests reveal no other facts in which [one] has a substantial privacy interest." Id. at 626, 109 S. Ct. at 1418.
Thus, "[t]o say that the Fourth Amendment applies here is the beginning point, not the end of the analysis." King, 133 S. Ct. at 1969. "The Fourth Amendment does not prohibit all searches, only those that are unreasonable." United States v. Davis, 690 F.3d 226, 241 (4th Cir. 2012), cert. denied, 134 S.Ct. 52 (2013). The ultimate measure of the constitutionality of a governmental search is "reasonableness." King, 133 S. Ct. at 1969. "The fact than an intrusion is negligible is of central relevance to determining reasonableness, although it is still a search as the law defines that term." Id. The Fourth Amendment's proper function is not to constrain all intrusions, but only intrusions that are unjustified or made in an improper manner. Id.
Id. (alteration in original) (citations omitted).
To determine the constitutionality of a particular search, the Court "must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642 (1983). The issue presented in this case was addressed recently by the Intermediate Court of Appeals of Hawai'i. In balancing the intrusion of the Fourth Amendment interests of a person arrested for DUI against the governmental interest in deterring drunk drivers, the court explained that
Won, 2014 WL 1270615, at *21 (alteration in original) (footnote omitted); see Stevens v. Comm'r of Pub. Safety, 850 N.W.2d 717, 727-28 (Minn. Ct. App. 2014) (concluding that Minnesota's implied-consent statute satisfies Fourth Amendment's general reasonableness requirement and that licensed driver in Minnesota has diminished expectation of privacy with respect to enforcement of state's DWI laws).
Similarly, under the statutory scheme applicable in this case, the Court finds that the governmental interest in combatting the danger to public safety caused by drunk driving outweighs the minimal intrusion on personal privacy effected by the breath test. The breath test administered in this case was, therefore, reasonable under the Fourth Amendment, and the police were not required to obtain a warrant. As such, the Government is not required to establish an exception to the warrant requirement.
The analysis does not end here, however. "Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. Urgent government interests are not a license for indiscriminate police behavior." King, 133 S. Ct. at 1970. Unlike most searches, a breath test requires the cooperation of the subject in order to administer the test and accomplish its purpose. Blood tests, fingernail scrapings, and buccal swabs of a subject's mouth can be effected whether or not the subject cooperates. On the other hand, a breath test cannot be administered unless the subject cooperates by producing a sufficient breath sample.
Defendant argues that the manner in which the breath test was administered was unduly coercive. According to Defendant, who relies on State v. Butler, 302 P.3d 609 (Ariz. 2013), "[t]he problem is that consent to take a breath test is not voluntary[;] it is coerced when the officer informs the suspect that taking the test is mandatory, and refusal a criminal act under 36 CFR § 4.23." Def.'s Mem. Supp. Mot. Suppress 3, ECF No. 15. "In light of the statutorily required coercion that occurs, consent cannot be considered to be voluntary and in compliance with the Fourth Amendment." Id. at 4.
In Butler, the Supreme Court of Arizona held that a compelled blood draw, even when administered pursuant to Arizona's implied-consent statute, is a search subject to the Fourth Amendment's constraints. Butler, 302 P.3d at 612 (citing McNeely, 133 S. Ct. at 1556). Accordingly, the Fourth Amendment requires an arrestee's consent to be voluntary to justify a warrantless blood draw. Id. The court in Butler considered the totality of the circumstances in that case, including the suspect's age and intelligence and the length of detention, before affirming the lower court's determination that the defendant's consent was involuntary. Id. at 613-14;
Further, the fact that Defendant was advised that refusal to provide a breath sample was prohibited, that a sample may be taken without his permission, and that he would be charged with a criminal offense if he refused to give a sample, does not render the manner in which the sample was obtained coercive. Form 21C, which was read to Defendant and which he himself read before signing, accurately stated the provisions of the implied-consent law. Indeed, Defendant testified that Officer Barner informed him that refusing to submit to a chemical test was illegal with concomitant ramifications. "[A] driver's decision to agree to take a test is not coerced simply because [the Government] has attached the penalty of making it a crime to refuse the test." Brooks, 838 N.W.2d at 570. Rather, the imposition of criminal penalties for refusing to submit to a constitutionally reasonable police search, namely, a chemical test of breath supported by probable cause, is a reasonable means to facilitate a permissible state objective. State v. Bernard, 844 N.W.2d 41, 45 (Minn. Ct. App. 2014), review granted (Minn. May 20, 2014). Although refusing the test comes with criminal penalties, "the Supreme Court has made clear that while the choice to submit or refuse to take a chemical test `will not be an easy or pleasant one for a suspect to make,' the criminal process `often requires suspects and defendants to make difficult choices.'" Brooks, 838 N.W.2d at 571 (quoting South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 923 (1983)); see Johnson v. State, 450 N.E.2d 123, 125 (Ind. Ct. App. 1983) (driver's "[k]nowledge of a possible penalty for refusal to submit to [a breath] test is not so inherently coercive as to negate his consent"). In fact,
State v. Moore, 318 P.3d 1133, 1138 (Or. 2013) (concluding that defendant expressly and voluntarily consented when officer asked defendant to submit to blood and urine tests and that defendant was not coerced by statement of rights and consequences that officer read to him before seeking consent), modified per curiam, 322 P.3d 486 (Or. 2014); see State v. Nickerson, 973 P.2d 758, 761-62 (Idaho Ct. App. 1999) (concluding that defendant, who was on parole and thus could not refuse breath test without risk of returning to prison, had impliedly consented as a matter of law to breath test under implied-consent statute; "the question of [the defendant's] consent at the police station, whether voluntary or involuntary, is superfluous, for actual consent at that point is unnecessary to the lawfulness of the procedure or the admissibility of the test results").
Bernard, 844 N.W.2d at 45-46 (citations omitted); see City of Dodge City v. Webb, 329 P.3d 515, 520-23 (Kan. Ct. App. 2014) (where probable cause supported law enforcement's threat to obtain warrant to secure sample of driver's blood after driver refused to submit to breathalyzer test, driver's subsequent consent to submit to breathalyzer test was not unlawfully coerced); Humphries v. State, 759 S.E.2d 611, 613-14 (Ga. Ct. App. 2014) (concluding that police officer's statements to defendant that chemical tests were "not optional" under state's implied-consent law were not coercive so as to require suppression of breath test results because none of officer's statements to defendant, including that police would obtain warrant to retrieve defendant's blood if defendant refused to consent to breath test, was deceptively misleading or inaccurate); State v. LeClercq, 243 P.3d 1093, 1099 (Idaho Ct. App. 2010) (holding that officer's statement informing driver of intention to obtain blood draw if driver refused breath test did not render driver's implied consent involuntary; "[w]here an officer informs a suspect that the officer intends to do something that the officer is legally authorized to do under the circumstances, such conduct does not amount to coercion").
Accordingly, even if Defendant could establish that his consent to take the breath test was obtained as a result of undue coercion, he cannot establish actual harm. The logical extension of Defendant's argument is that, but for the coercion, he would not have consented to the breath test. If Defendant did not consent, however, Officer Barner simply would have obtained a warrant for a blood test pursuant to established protocol.
Defendant also maintains that laws criminalizing refusals to consent to warrantless searches are unconstitutional, citing Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 540, 87 S.Ct. 1727, 1736-37 (1967). Camara involved a property owner facing criminal charges for refusing to allow an inspection of his property. There, the Court held that administrative searches of private dwellings intrude upon the interests protected by the Fourth Amendment and, therefore, require a warrant. Camara, 387 U.S. at 534, 87 S. Ct. at 1733; see Cowart v. Enrique, 311 F. App'x 210, 213 (11th Cir. 2009) (per curiam). The property owner in Camara had the right to insist on a warrant because there was no probable cause to believe that the property owner had violated any law and because there were no exigent circumstances preventing the government from obtaining a warrant. Camara, 387 U.S. at 539, 87 S. Ct. at 1736. Defendant did not have such a right, as there was probable cause to believe that he had been driving under the influence of alcohol and he already had been arrested on that charge. See Hoover v. Ohio, 549 F. App'x 355, 356-57 (6th Cir. 2013) (per curiam) (dismissing habeas corpus petitioner's reliance on Camara in arguing that he may not be constitutionally convicted for refusing to consent to warrantless breathalyzer test). Defendant's reliance on Camara accordingly is unavailing.
For these reasons, the Court finds that the statutory and regulatory scheme that imposes criminal sanctions to dissuade a driver from withdrawing his consent is reasonable and does not violate the Fourth Amendment. Because the warrantless breath test in this case did not violate the Fourth Amendment, the Court denies Defendant's Motion to Suppress.
For the reasons stated above, Defendant's Motion to Suppress Search and Seizure (ECF No. 14) is
