D. BROCK HORNBY, District Judge.
This criminal negligence case arises out of a tragic event at sea off the Maine coast on Saturday, November 1, 2014. Around 1 a.m. that morning, the No Limits put out to sea from Tenants Harbor with its owner/captain, the defendant Christopher Hutchinson, and two crew members, Tyler Sawyer and Thomas Hammond, to pull lobster traps on 11-Mile Ridge. The weather and seas turned very bad, and the No Limits headed back toward port mid-morning. It capsized en route. Hutchinson, although injured, made it to a life raft. The Coast Guard rescued him around 4 p.m. and took him to Maine Medical Center where he was treated for facial contusions and lacerations and hypothermia. The two crew members were lost at sea. Around 9 p.m. that evening in the trauma room of Maine Medical Center, law enforcement drew a blood sample from Hutchinson without obtaining a warrant and under contested circumstances. Now facing federal prosecution for seaman's manslaughter, the defendant Hutchinson has moved to suppress the results of the blood test and any later statements he made to law enforcement that were based upon the test results.
I conducted an evidentiary hearing on December 18 and 20, 2017. I find the facts that follow, based on the testimony and exhibits.
Richard Yazbek, a marine investigator for the United States Coast Guard, was the duty marine investigator for Portland on Saturday November 1, 2014. He had never previously conducted a blood draw and generally asked a seaman's employer to obtain a blood draw when it was needed. But he knew that other investigators had sent mariners to Pen Bay Medical Center in Rockport to have blood drawn there.
Yazbek was at home in West Bath when he received a phone call from the USCG Sector Northern New England Command Center around 6 or 6:30 p.m. about the accident, informing him that a vessel had sunk, two crew members were missing, and one was being taken to Maine Medical Center in Portland. Yazbek gathered his investigative bag and started driving to Maine Medical Center to investigate. During the drive he spoke by phone to his supervisor Lieutenant Janna Ott. The supervisor told Yazbek he needed to do drug and alcohol testing. Yazbek later told investigator Volk that at the time he believed he had 32 hours to have the drug test done. Def. Ex. 6. He also told investigator Volk that if he had been unable to get the blood drawn Saturday, he would have asked the defendant to go to Pen Bay Medical Center Sunday in Rockport.
Yazbek arrived at the hospital around 7:30 p.m., about the same time as two USCG uniformed Petty Officers arrived from the South Portland Coast Guard station. The defendant was in a trauma room at Maine Medical Center.
When Yazbek and the two Coast Guard officers entered the defendant's hospital room, the defendant was wrapped in a "bear hugger" heat blanket. Yazbek told the defendant he was going to do an alcohol breath test, the lead petty officer described the procedure, and the defendant agreed to the test. The test result was negative for alcohol, and the two petty officers left.
Yazbek then waited for the police officer he believed the Maine State Police was sending to do the blood draw for drug testing. During that time, he was in and out of the hospital room but mostly out. At some point the defendant's mother asked him if the blood test could be delayed because the defendant had had a long day. Yazbek told her that it was required by law and regulation, that there were mandatory time limits, that it was supposed to be done as soon as possible, and that "we have to do this now." Yazbek was thinking to himself that it might be difficult to find a facility to do a drug test the next day, Sunday, since the defendant was going home to Port Clyde. Yazbek also asked hospital personnel if they could delay discharging the defendant for a short amount of time until the person who would administer the drug test arrived. Hospital personnel treated the defendant's facial lacerations with stitches between 8 and 8:30 p.m. About 15 minutes after Yazbek's request that discharge be delayed, Gorham Police Officer Dean Hannon arrived to perform the blood test with a standard kit that the Maine Department of Health & Human Services provides for police officers to use in the State of Maine. Officer Hannon drew the defendant's blood at 9 p.m., using the I-V apparatus already in the defendant's arm without inserting a new needle. Whether the defendant actually consented to the blood draw is hotly disputed as I describe below. Yazbek believed that the defendant had to submit to the test. Hannon then and later completed certain documents that stated that the defendant had verbally consented to the blood draw, that the blood test was "mandated," and that Yazbek witnessed the blood draw. He gave the completed kit to Yazbek. Yazbek delayed an interview of the defendant until the next day because he thought the defendant was in no condition to be interviewed.
About 15 minutes after the blood draw, Maine Medical Center discharged the defendant.
In summary, soon after 6 or 6:30 p.m., Yazbek and his supervisor made the decision to have the defendant's blood drawn, knowing only that the No Limits had capsized and that two crew members were missing. Yazbek and Hannon conducted the draw believing that the defendant was required by law to submit to the blood draw. As appears below, the law upon which they were relying did not require the defendant to submit to the test (although it provided negative consequences for failing to do so). The government argues that I should nevertheless not suppress the test results, because the defendant voluntarily consented to the blood draw on the evening of November 1, and that even if he didn't, the blood draw was proper because the Coast Guard had probable cause to believe illegal substances were involved and had no time to seek a warrant permitting the blood draw. The government is entitled to advance those alternate arguments and I consider them carefully. The issues are more difficult than the run-of-the-mill case, however, because the officers were not thinking in terms of probable cause, a warrant, or exigent circumstances, and the assessment is therefore a hypothetical construct. The parties also disagree vehemently over whether I can consider certain information or inferences gathered in the days, weeks, and months after November 1, 2014.
The blood test ultimately revealed that the defendant had ingested marijuana and oxycodone. Gov't Ex. 29.
It has been clear since at least 1966 that compulsory blood draws are "intrusions into the human body" subject to the Fourth Amendment's prohibition on unreasonable searches and seizures.
The government argues that the blood draw here was justified by the government's special need to regulate the fishing industry in the interest of safety. Gov't Opp'n 12 (ECF No. 12). It relies principally on
The Court described the FRA testing as "mandatory," but it used that term in the sense that negative consequences to an employee resulted from refusal to undergo testing, not that an employee could be physically compelled to submit to the test.
In this case, the government points to numerous regulations to show that commercial fishing, like railroading, is a dangerous, highly regulated industry in which workers have diminished expectations of on-the-job privacy. Gov't Opp'n 7-12. The defendant agrees. The government cites two sets of Coast Guard regulations that call for drug and alcohol testing of marine workers.
The first, Subchapter F, Part 95 of Title 33 of the Code of Federal Regulations, prescribes restrictions on operating covered vessels under the influence, along with standards for drug and alcohol testing. It authorizes law enforcement officers and marine employers to "direct an individual operating a vessel to undergo a chemical test [for drugs or alcohol] when reasonable cause exists." 33 C.F.R. § 95.035(a). Reasonable cause exists when, among other things, "[t]he individual was directly involved in the occurrence of a marine casualty as defined in Chapter 61 of Title 46, United States Code."
The second, Part 4 of C.F.R. Title 46, elaborates the Coast Guard's regulatory authority to investigate serious marine casualties. Subpart 4.06 provides for "Mandatory Chemical Testing Following Serious Marine Incidents Involving Vessels in Commercial Service."
The Coast Guard regulations call for "mandatory" testing in the sense that
Unlike in
The defendant is correct that these regulations do not authorize compelled testing over objection. As quoted above, one of them says so explicitly. 46 C.F.R. § 4.06-5(d). Like the FRA regulations at issue in
At oral argument, the government did not appear to claim that the blood draw was conducted pursuant to the regulations. Rather, the government argued that the
The government argues that even if
I have three competing versions of what happened in the Maine Medical Center trauma room in connection with the 9 p.m. blood draw on November 1, 2014.
The defendant's mother Tina Hutchinson (the defendant was 26 years old) says that the defendant was asleep, that she asked for the blood draw to be postponed, and that she said that the defendant did not like needles, but Officer Hannon proceeded regardless, and used the I-V apparatus to obtain the defendant's blood while he was asleep without inserting an additional needle into the defendant's arm.
Coast Guard investigator Yazbek, who commissioned the draw, says that he was in the room, that the defendant was awake, that Yazbek said the test was mandatory, that Officer Hannon also told the defendant the test was mandatory, that he (Yazbek) did not hear the defendant speak, but that the defendant nodded his head in response to Officer Hannon.
Gorham Police Officer Dean Hannon, who conducted the draw at the Coast Guard's request, says that he does not remember whether Yazbek was in the room; that there were family members in the room, perhaps the mother, and that perhaps the mother objected to the draw; that the defendant was awake and that Hannon told the defendant that the test was mandatory under numerous state and federal laws; that he specifically asked the defendant whether the defendant consented to the blood draw; and that the defendant uttered the word yes aloud.
The DHHS forms Hannon completed the night in question say that Hannon obtained the defendant's verbal consent at 8:55 p.m. before the 9:00 p.m. draw. Yazbek signed a form that he had witnessed the draw. Gov't Ex.18.
Hannon's later report for the Gorham Police Department says that "[t]here was nothing unusual about the blood draw." Gov't Ex. 19.
Other people who were present in the room—the defendant's father and the defendant himself
I do not rely on demeanor to determine the version of events that I credit on this question of consent. Although appellate courts customarily refer to the trial judge's opportunity to observe witness demeanor during testimony as a reason for deferring to the judge's factual findings, research shows that demeanor is often a defective guide to detecting falsity or truth-telling. Instead, I make my factual determinations based on what is most probable, using circumstantial evidence as it is available.
Here, both Yazbek and Hannon believed that the blood draw was compulsory. That is uncontested. There is no indication that Yazbek thought the defendant's consent was required. However, the forms in the DHHS kit that Hannon always uses include a consent form that Hannon completes before conducting a draw. Hannon says that he always obtains actual consent and that in the absence of actual consent, he refers the requesting law enforcement agency to the warrant process. This particular blood draw was not part of Hannon's or the Gorham Police Department's investigation; thus, Hannon had and has no particular interest in its outcome. If Hannon did take the draw while the defendant was sleeping and without his consent, he had nothing to gain by lying about it in the forms he completed. It is true that Yazbek did not hear the verbal consent that Hannon reported on the form and in his testimony. But the defendant was facing Hannon, Yazbek was farther away, and there were other people in the room who could have created ambient noise. A head nod and a quiet verbal yes are not mutually exclusive. Indeed, if Yazbek and Hannon decided to lie about what actually happened in the trauma room with respect to the blood draw's circumstances, it would be more likely that they would have agreed on a false story, rather than the messiness that often results from independent recollections of events.
I find that the defendant was awake and that he gave explicit consent to the blood draw.
It is undisputed that both law enforcement officers told the defendant (and his mother) that he had to submit to the blood draw. If that information was accurate, then the defendant's consent was not required. If that information was not accurate, then the officers gave the defendant misleading information in obtaining his consent.
The First Circuit has detailed the analysis that governs these circumstances:
For the reasons I have already detailed, law enforcement erroneously told the defendant that the blood draw was compulsory. I am satisfied that the law enforcement officers were sincere in their belief, but the First Circuit has held that subjective good faith is insufficient; they have to get the law right.
I find as a "fact based on the totality of the circumstances" (
Because the statute and regulations governing marine activity did not allow a blood draw without consent, because the consent that law enforcement obtained was invalid, and because law enforcement did not obtain a warrant, I next determine whether there were exigent circumstances justifying failure to seek a warrant and whether the officers had probable cause to conduct the blood draw. Both are necessary.
At 6 or 6:30 p.m., the Coast Guard Command Center first contacted Yazbek. He proceeded to drive from his home in West Bath to Maine Medical Center in Portland. While driving, he talked by cell phone to his supervisor, Lt. Ott. She directed him to be sure to get both a breath test and a blood test. Thus the decision to obtain the blood draw must have occurred soon after 6 or 6:30 p.m. because Yazbek thereafter made a number of phone calls to procure breath and blood testing and arrived at the hospital around 7:30 p.m. The government produced no evidence that investigator Yazbek (or anyone on his behalf) made any effort to determine whether a federal or state judge was available to consider issuing a warrant.
Lt. Ott, as Yazbek's superior, instructed him early in the evening of November 1 to obtain the blood draw. But I have no information about what she knew beyond the inference that she had the same information Yazbek had while he was driving to Portland, i.e., a sinking in bad weather and the loss of two crew members. Since I have to approach the probable cause assessment here as a hypothetical construct and the decision to obtain the blood draw was not final until the draw occurred, I will look at everything Yazbek knew or was told up until the blood was drawn at 9 p.m.
Before Yazbek drew the defendant's blood (via Hannon), the Coast Guard had the additional information that none of the crew was wearing an immersion suit or a life jacket, that they were dressed in jeans and t-shirts, and that on account of the weather and heavy following seas the vessel "kind of" or "almost" "started surfing down the front of a wave." The defendant gave his father that information, and his father relayed it to the Coast Guard from the hospital by phone. I assume that Yazbek learned it as well. Yazbek also knew that one crew member's father was adamant, Gov't Ex. 13, in wanting the defendant tested for drugs and alcohol. Contrary to the government's brief, Gov't Opp'n 1-2, and the initial testimony of USCG Criminal Investigator Volk, however, the Coast Guard and Yazbek were
I am not going to consider information that investigators developed after the blood draw—for example, the defendant's instruction in seamanship, his prior criminal history,
Aviation Survival Technician Evan Staph, a Coast Guard "swimmer," left the helicopter and rescued the defendant in 20-foot seas. The videos of the rescue reveal vividly the ready heroism of United States Coast Guard personnel. Gov't Ex. 9. Staph observed that when he made the defendant go back into the water from the life raft in order to be hoisted by the rescue basket, the defendant did not flinch at the cold water. But Staph did not make known this observation until after the blood draw. The government asks me to consider research it has found (specifically a 2009 research paper, Gov't Ex. 11) and a toxicologist's affidavit, Gov't Ex. 31, noting that opiates and oxycodone in particular have an analgesic effect that suppresses pain or cold and argues that the effect is common knowledge. But there is no evidence that anyone involved, including Staph, knew of that effect on November 1. More importantly, Staph said explicitly that he attributed the defendant's lack of reaction to cold water to hypothermia (not drugs), and the rescue personnel reported a "pretty bad" contusion on the defendant's left temple, Gov't Ex. 12. I therefore do not consider Staph's observation of the lack of reaction to cold water in the probable cause assessment.
The government also asks me to draw negative inferences from the video of the defendant being hoisted into the helicopter and his behavior in the helicopter (he appears to be moving well physically). There is no information that any of that behavior was made known to Yazbek or Ott or what inferences they would or should have drawn from it. Even if I add the defendant's helicopter behavior to the probable cause mix under
Considering the information available as of 9 p.m. on November 1, a reasonable officer could certainly conclude that there was probable cause to conclude that Hutchinson behaved negligently or recklessly in going out November 1 and in how he allowed his crew to be dressed, and in his seamanship on the return. But it would be rank speculation to conclude that drugs were involved given the information available directly or indirectly to Yazbek. It is tantalizing to consider that the crew member's father who wanted drug and alcohol tests might have had other information that he could have made available to the Coast Guard but, without his doing so, that information cannot contribute to probable cause. And I repeat that this is all a hypothetical construct because Yazbek and his superior Ott never even considered whether there was probable cause or an exigency exception to the warrant requirement.
The government argued in its brief that, if no justification exists for the blood draw, it should nevertheless not be suppressed because of the "good faith" exception derived from
That was a sensible concession. The good faith exception applies to warranted searches and seizures and a limited number of no-warrant scenarios.
Because there was no statutory or regulatory justification for a blood draw without consent, because there was no effective consent, because there was no warrant and no exigent circumstance to excuse seeking a warrant and no probable cause, the blood draw and its test results are inadmissible. The defendant concedes that this conclusion does not preclude use of what he may have said to other people.
The government "has the ultimate burden of persuasion to show that its evidence is untainted," but the defendant "must go forward with specific evidence demonstrating taint."
The defendant can demonstrate taint as to all questions asked based on knowledge of the testing and his responses to these questions. All such statements are inadmissible. He cannot establish taint as to voluntary statements not made in response to questions based on knowledge of the testing, as the defense essentially conceded at oral argument.
The government also asked me to rule that even if the test results are excluded from its direct case, they can be used as impeachment if the defendant chooses to testify at trial. The defendant's lawyer conceded that if the defendant opened the door by testifying at trial that, for example, he is not a drug user, the government could properly impeach this testimony with the results of the blood draw.
The First Circuit has held that "[w]hen a defendant opens the door to impeachment through his statements on direct, the government may try to establish that his testimony is not to be believed through cross-examination and the introduction of evidence, including tainted evidence, that contradicts the direct testimony."
I conclude that the government may use the tainted evidence to impeach any testimony offered by the defendant within the limits set by
The motion to suppress is
