DEBORAH K. CHASANOW, District Judge.
Pending before the court is the government's interlocutory appeal from an order issued November 18, 2013, by United States Magistrate Judge Thomas M. DiGirolamo, granting a motion to suppress filed
Following a minor traffic accident on the evening of June 23, 2012, Appellee was arrested by United States Park Police and charged, inter alia, with driving under the influence of alcohol, in violation of 36 C.F.R. § 4.23(a)(1). On June 3, 2013, he filed a motion to suppress evidence of a nonconsensual, warrantless blood test incident to his arrest based on Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), in which the Supreme Court of the United States held that the natural dissipation of alcohol in the bloodstream does not, by itself, constitute an exigent circumstance justifying a warrantless blood draw.
On July 17, 2013, Judge DiGirolamo issued an order in seventeen pending cases, including the case from which the instant appeal arises, finding that McNeely applied retroactively. Subsequently, he ruled on a suppression motion in United States v. Brown, No. 13-po-01557, 2013 WL 5604589 (D.Md. Oct. 11, 2013), based on facts substantially similar to those presented here, that warrantless blood testing constituted a violation of the defendant's rights under the Fourth Amendment and that the good faith exception to the exclusionary rule did not apply. A hearing on Appellee's motion to suppress was scheduled for November 18, 2013.
At the suppression hearing, United States Park Police Officer Greg Harper testified that, at 10:39 p.m. on June 23, 2012, he received a dispatch report of "a two vehicle crash on the Clara Barton Parkway," a federal highway in Montgomery County, Maryland, that is "administered by the National Park Service." (ECF No. 1-20, at 5, 39). He arrived at the scene within minutes, observing that officers from the Montgomery County Police Department were already present and that two cars that appeared to have been involved in a minor "fender bender" were parked "off to the safety portion of the road." (Id. at 6). Officer Harper "asked for both drivers" and met first with Appellee, immediately observing indicia of impairment: Appellee "was swaying[,] . . . his zipper was down[,] . . . his speech was slurred[,] . . . his eyes were real watery and bloodshot[, and he] . . . smelled of
In the interim, Appellee's mother arrived at the scene in a different vehicle. While speaking with her, Officer Harper "noticed that she smelled of alcohol . . . [and] informed her that [he] needed her to do a field sobriety [test]." (Id. at 15). Appellee overheard this and "went crazy[,]. . . yelling, `Don't do anything they say. F them. Don't listen to them.'" (Id.). Officer Harper rolled up the window of the police cruiser and "called for another officer to assist [him.]" (Id. at 16). He administered a roadside breath test to Appellee's mother, who "blew a 0.04." (Id.). Officer Harper "told her that [he] was just going to have her wait . . . until the crane [arrived] and if she goes below . . . a 0. 03, then [he] would just let her go home." (Id. at 17).
Approximately thirty minutes later, Officer Harper's partner and the tow truck both arrived; Appellee's mother was permitted to leave in her car; and Appellee was transported to Sibley Hospital where his blood was drawn, without his consent, at 11:39 p.m. (Id. at 18, 35-36). When asked why he did not "call a magistrate or judge and obtain a warrant for the blood draw," Officer Harper responded, "I didn't know we had to. . . . Under [36 C.F.R. § 4.23(c)(3)] . . . we had the right to choose blood, urine or breath." (Id. at 19).
Based on this testimony, the government argued that additional factors other than the natural dissipation of alcohol in the bloodstream created exigent circumstances justifying the warrantless blood draw and that, in any event, the results of the blood test should not be excluded because Officer Harper acted in accordance with the law in effect at the time of the arrest. Judge DiGirolamo was not persuaded:
(Id. at 54-55).
On December 2, 2013, the government timely filed a notice of appeal. (ECF No. 1). The government's appellate brief followed on January 10, 2014 (ECF No. 6), and Appellee filed a brief in opposition on February 10 (ECF No. 9). The parties presented oral argument at a hearing on February 14.
Federal Rule of Criminal Procedure 58(g)(2)(A) permits "[e]ither party" to take an interlocutory appeal from "an order of a magistrate judge to a district judge within 14 days of its entry if a district judge's order could similarly be appealed." Pursuant to 18 U.S.C. § 3731, "[a]n appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence. . . if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding." The government has filed the requisite certification in this case. (ECF No. 5).
Rule 58(g)(2)(D) provides that the scope of an appeal from a magistrate judge's order "is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Thus, "in reviewing the grant of a suppression motion, [the district court] review[s] the [magistrate judge's] factual findings for clear error and [his] legal determinations de novo." United States v. Laudermilt, 677 F.3d 605, 609
The government challenges the ruling below essentially on two fronts. Taken in the proper order, it argues first that a warrant was not necessary because exigent circumstances, other than the natural dissipation of alcohol in the bloodstream, were presented in this case such that it was reasonable for Officer Harper to believe there was insufficient time to obtain a warrant. Secondly, and more forcefully, the government contends that, even if a warrant was required, the court erred in finding that the good faith exception to the exclusionary rule did not apply because the law in this district at the time of Appellee's arrest did not require a warrant. Both of these arguments have merit.
Judge DiGirolamo's decision to suppress the results of Appellee's blood test was based largely on his finding that the facts were materially indistinguishable from those presented in Brown—in other words, that the accident in this case, the complications presented by Appellee's mother arriving on the scene, and the time that the officer had to wait for a tow truck did not enhance the degree of exigency to any significant degree. As to this much, no error is discernable. Officer Harper testified unequivocally that he arrived at the scene within minutes of receiving the dispatch report; that he promptly observed indicia that Appellee was intoxicated, administered field sobriety tests, and placed him under arrest for suspicion of driving under the influence of alcohol; that departmental policy in any drunk-driving arrest required that the driver's vehicle be impounded and that an officer wait at the scene until a tow truck arrived; and that the tow truck arrived within the expected time period. Thus, Judge DiGirolamo's finding that "everything that happened . . . while they [were] waiting for the tow truck. . . did not cause a delay in any of the proceedings because they were going to have to wait for the tow truck anyway" (ECF No. 1-20, at 54), is fully supported by the record, and the case is in the same general factual and procedural posture as Brown, a more "routine" DWI case not involving an accident.
The problem is that Brown misinterpreted McNeely in critical respects. Initially, Brown failed to recognize that, under McNeely, the time required to obtain a warrant, including whether an expedited warrant procedure was in place, could impact the exigency analysis. Specifically, Justice Sotomayor's opinion for the McNeely Court recognized:
McNeely, 133 S.Ct. at 1568. Thus, under McNeely, the existing procedure for obtaining a warrant is a factor among the "totality of the circumstances" that should be considered in determining whether a
In Brown, the undisputed testimony was that the United States Park Police had no expedited warrant procedure in place prior to the McNeely decision. The arresting officer "testified that[,] in the event of a refusal, U.S. Park Police procedures provided that the suspect could be transported to a hospital for a nonconsensual blood draw if a supervising officer first gave permission" and that "she had never obtained a warrant in the past under these circumstances[.]" Brown, 2013 WL 5604589, at *2. A detective "confirmed that it was not the policy of the U.S. Park Police to obtain a warrant prior to the nonconsensual taking of DWI suspect's blood," adding that "the procedure developed between the U.S. Park Police and United States Attorney's Office in regard to obtaining a search and seizure warrant during non-business hours . . . could take from five to nine hours." Id. at *3. Moreover, testimony established that, on April 17, 2013—the same day McNeely was decided—
Brown, 2013 WL 5604589, at *3. The fact that an expedited warrant procedure was put in place on the same day that McNeely was decided supports the conclusion that no such procedure existed prior to that date.
Similarly, in the instant case, Officer Harper testified that he was acting in accordance with departmental policy when he directed Appellee's nonconsensual, warrantless blood draw; that he had never sought a warrant under those circumstances in the past; that he believed the applicable law did not require him to do so; and that an expedited warrant procedure was promptly put in place after McNeely was decided. Moreover, Judge DiGirolamo acknowledged that "there was no . . . expedited warrant procedure in effect" at the time of Appellee's arrest and that "no one really thought" a warrant was necessary. (ECF No. 1-20, at 55).
Significantly, the same facts were not presented in McNeely. Although Missouri did not permit a warrant to issue based on "oral testimony, thus excluding telephonic warrants," McNeely, 133 S.Ct. at 1562 n. 4, the defendant "entered into evidence [at the suppression hearing] a search-warrant form used in drunk-driving cases by the prosecutor's office . . . where the arrest took place" and "[t]he arresting officer acknowledged that he had used such forms in the past and that they were `readily available,'" id. at 1562 n. 5. Moreover, the officer "testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was `sure' a prosecuting attorney was on call"; that "he had no reason to believe that a magistrate judge would have been unavailable"; and that "he had obtained search warrants before taking blood samples in the past without difficulty." Id. at 1567. As Judge DiGirolamo noted in Brown, the underlying opinion of the Supreme Court of Missouri reflects that the officer believed his actions were justified based on a recent change in Missouri law, but that court found that the officer's belief in this regard
Although, in the instant case, the government did not specifically argue that the length of time it would have taken to obtain a warrant under existing procedures constituted an exigent circumstance in its own right, it did argue, based on Officer Harper's testimony, that no procedure for an expedited warrant was in place at the time of Appellee's arrest. From that, it may be logically inferred that obtaining a warrant would have been a time-intensive process. Moreover, Brown—decided approximately one month earlier by the same magistrate judge and involving the same prosecutor—provided the backdrop for the instant suppression hearing, and the government did argue in that case that "the procedure for obtaining a search and seizure warrant in Maryland [at the time of the defendant's arrest] was cumbersome and time-consuming." (Crim. No. 13-1557-TMD, ECF No. 31, at 4). Indeed, Judge DiGirolamo incorporated aspects of the Brown decision wholesale in granting Appellee's motion to suppress, and the government had little reason to expect that the same arguments that were rejected in that case would be successful here.
McNeely, 133 S.Ct. at 1568, explicitly states that the "procedures in place for obtaining a warrant or the availability of a magistrate judge" are among the factors to be considered in the exigency analysis. In Brown—and, by extension, in the instant case—the court failed to address that factor. Its failure in this regard constitutes an error of law, and if the case were reversed solely on this basis, further suppression proceedings would be necessary to permit consideration of all relevant factors.
Such proceedings are unnecessary, however, because the court also erred in failing to apply the so-called "good faith" exception to the exclusionary rule. As the Supreme Court explained in Davis v. United States, ___ U.S. ___, ___, 131 S.Ct. 2419, 2426-28, 180 L.Ed.2d 285 (2011):
(Internal marks and citations omitted).
Here, in finding that the good faith exception did not apply, Judge DiGirolamo "reaffirm[ed]" his ruling in Brown, 2013 WL 5604589, at *9 (ECF No. 1-20, at 55)—namely, that "the relevant facts in McNeely were not materially different from the facts of this case, and neither the Supreme Court of Missouri nor the Supreme Court of the United States applied the good-faith exception to save the blood test results from exclusion." The state of the law in Missouri on the issue of warrantless blood draws following DWI arrests was unsettled at the time McNeely was decided. While the Missouri Supreme Court opinion notes that two intermediate appellate decisions held that warrantless blood draws were permissible "in terms of a search incident to arrest," State v. McNeely, 358 S.W.3d 65, 72 n. 5 (Mo.2012), the issue of whether the natural dissipation of alcohol constituted per se exigency under Schmerber was apparently one of first impression in that court. As noted, moreover, the arresting officer in that case did not act in accordance with existing protocol.
The same cannot be said of the instant case. Here, the Fourth Circuit's decision in Reid interpreted Schmerber as permitting a warrantless breathalyzer test under similar circumstances:
Reid, 929 F.2d at 994. Critically, for present purposes, the court held that the availability of "a warrant via the telephone as allowed by [then applicable] Fed. R.Crim.P. 41(c)(2) does not alter the exigency of the situation":
Id. at 993.
Although the facts of Reid involved a breath test, and not a blood test, other courts have interpreted the holding more generally. See United States v. Sauls, 981 F.Supp. 909, 913 (D.Md.1997) (citing Schmerber and Reid for the proposition 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"). In fact, two of the state supreme court decisions explicitly abrogated by McNeely cited Reid in finding that the natural dissipation of alcohol in the bloodstream constituted per se exigency under Schmerber. See State v. Shriner, 751 N.W.2d 538, 547 n. 11 (Minn.2008) (citing Reid among a number of cases in which "courts have interpreted Schmerber as concluding that the naturally rapid dissipation of alcohol in the bloodstream creates an emergency that justifies a warrantless blood draw"); State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399, 404 (1993) (citing Reid, noting that "[t]he Fourth Circuit also concurs with our interpretation of Schmerber"). Although McNeely established, at least, that these interpretations are erroneous, there can be little doubt that the United States Park Police, the United States Attorney's Office, and likely the court itself reasonably believed this was the state of the law in this jurisdiction at the time of Appellee's arrest.
This is not a case, like McNeely, involving an arresting officer acting in accordance with his independent interpretation of the law based on his reading of an article and despite his knowledge that an established procedure existed for obtaining a warrant in the same circumstances. Rather, the unrebutted testimony at Appellee's suppression hearing showed that no expedited warrant procedure was in place; that the prevailing belief was that a warrant was not required; and that Officer Harper acted in accordance with what he believed to be the proper procedure. Indeed, following McNeely, courts in the Fourth Circuit were in much the same position as courts in Wisconsin, based on the Supreme Court's explicit abrogation of Bohling. Notably, one intermediate appellate court there has since found the good faith exception applicable where the arresting officer compelled a warrantless blood test based on Bohling:
State v. Reese, 353 Wis.2d 266, 844 N.W.2d 396, 402 (Wis.App.2014) (internal citation omitted; emphasis in original). A similar result should have obtained in this case.
For the foregoing reasons, Judge DiGirolamo's order granting Appellee's motion to suppress will be reversed and the case will be remanded for further proceedings. A separate order will follow.
