Articles Posted in Constitutional rights

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The United States District Court for the Southern Division of Maryland in Greenbelt issued its first ruling Friday granting a defense motion to suppress a warrantless blood test as a result of the Supreme Court decision in Missouri v. McNeely. Magistrate Judge Thomas M. DiGirolamo issued a 19 page written opinion holding that McNeely applied to cases pending at the time of its issuance, that the Government did not demostrate sufficient exigent circumstances to justify dispensing with a warrant, and that the Fourth Amendment exclusionary rule did apply in the case of United States v. Brown, 2013 U.S. Dist. LEXIS 147352 (D. Md. October 11, 2013).

The opinion stated:

The government asserts that this case falls within the exigent circumstances exception. Specifically, it points to the 30 minute delay in the taking of the defendant’s blood due to the defendant’s failure to cooperate with the breath test at the station. The Court does not find that said delay combined with the natural dissipation of blood-alcohol brings this case within the exigent circumstances exception. This is simply not a case where the exigencies of the situation were so compelling to excuse the need for a warrant. Officer Weisbaum described this incident as a “routine” DWI stop. While this alone does not mean a warrant is required, it is a “special fact” to be considered. See McNeely, 133 S.Ct. at 1568. Additionally, unlike Schmerber, time did not have to be taken to investigate an accident or attend to the suspect’s personal injuries. There was nothing about the defendant’s physical or mental condition, or behavior, which required the expenditure of time in addition to what would normally be expended in a routine DWI stop. Officer Weisbaum testified that it is common for defendants to at first agree to cooperate with the breath test and then not blow sufficiently, resulting in a failed test. The Court does not find that the totality of the circumstances present in this case constitute such an emergency to excuse the officer from obtaining a warrant prior to the taking of the defendant’s blood. Given that the defendant did not consent to the blood test, the Court finds the taking of his blood was in violation of the Fourth Amendment.

There remain pending in Greenbelt a number of unresolved motions to suppress due to the policy of the U.S. Park Police to obtain blood samples in DUI cases without first seeking a warrant prior to the Supreme Court’s decision in Missouri v. McNeely, on April 17, 2013. The U.S. Park Police was one of a very small number of jurisdictions in the United States that followed the practice of getting blood samples from DUI suspects without first getting a warrant. The vast majority of states that obtained blood samples were already seeking and getting judicially issued warrants before drawing blood in DUI cases.
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The Supreme Court today announced its opinion in Missouri v. McNeely and ruled that police in DUI investigations may not automatically avoid seeking a search warrant to obtain a blood sample where the defendant does not consent to a blood test. This is the third win as amicus curiae for the National College for DUI Defense which filed an amicus brief with the National Association of Criminal Defense Lawyers.

The Court said:

In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U. S. 451, 456 (1948) (“We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made [the search] imperative”).

It is interesting counting the votes again.

With respect to the proposition that there is no per se DUI exception to the warrant requirement in so far as non-consensual blood tests are concerned, the vote is 8-1 (only Thomas dissented from the holding). Since that was the only basis urged by Missouri for decision, the Missouri Supreme Court was affirmed. Missouri never appealed the question of whether the officer in this case acted reasonably.

As a result, Justice Kennedy wouldn’t touch when and whether it might be reasonable for an officer to get blood without a warrant. He is willing to wait for the next case to do so. In so far as there was a discussion about how to determine when and whether an exigency exists there were 3 votes for kind of a special totality test where if the warrant couldn’t be obtained without any delay at all, then it might not be needed (Roberts, Alito & Breyer). But Sotomayor, Kagan, Scalia and Ginsburg disagreed with this approach.
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Today, the Supreme Court heard argument in the case of Missouri v. McNeely. The case involved police obtaining a blood alcohol test without a warrant. The officer, who had previously had no difficulty obtaining warrants before getting blood samples in DUI cases had mistakenly believed that Missouri law had changed. Because there was nothing unusual about the case, the Missouri Supreme Court distinguished the 1966 Supreme Court case of Schmerber v. California, where due to the delay occasioned by an accident investigation and the defendant’s trip to a hospital, and the dissipation of alcohol in the blood, the Supreme Court allowed a warrantless blood draw. In this case, the Missouri Supreme Court held that the state had failed to show the special circumstances that would have allowed police to skip getting a warrant.

The State of Missouri requested review, posing the following question:

Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream

McNeely was represented in the Supreme Court by Steven Shapiro, legal director of the ACLU. McNeely was supported by a number of amicus briefs, including one filed by the National College for DUI Defense and the National Association of Criminal Defense Lawyers and co-authored by Leonard R. Stamm, Jeffrey Green, and Jeffrey Beelaert.
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This past Wednesday I got a call from a former client, JT, who is from a state where it is legal to travel with a handgun in the car, to help his employee, AJ, who had just been arrested in West Virginia and was awaiting extradition to Maryland. Unlike the state they were from, in Maryland it is illegal to possess or transport a handgun in a car, with very few exceptions. I had represented JT on a handgun charge in Prince George’s County, Maryland and obtained a good result. Prince George’s County takes a hard line on people found illegally possessing a handgun and prosecutes them very aggressively. JT, and his employee, AJ, were driving to a construction job in another state when JT got tired and asked AJ to drive. He did, but when he was pulled over for speeding, police found AJ didn’t have a drivers license. A search of the car yielded the handgun. The gun belonged to JT, it was JT’s car, and AJ didn’t even know it was there.

Initially in District Court at the time of their arrest and release, in late October, 2011, JT was charged with illegally transporting the handgun and AJ was charged with speeding and driving without a license. In early December, both JT and AJ were indicted in Circuit Court for illegally possessing and transporting the handgun. In Maryland when someone who is initially charged in District Court is indicted in Circuit Court, the District Court loses jurisdiction to the Circuit Court and any initial bond that is posted to gain release is supposed to transfer to the new Circuit Court case. In this case when the indictments were returned a Circuit Court judge issued bench warrants and set a $25,000 bond for each as if there had been no District Court bond set and satisfied. That should not have happened.

Since I represented JT, I arranged for a “walk in arraignment,” where the judge recalled the warrant and let him out on his original terms of release. Ultimately JT pleaded guilty to illegally transporting a handgun and received probation before judgment. However, AJ and his lawyer appeared in District Court in February, where he pleaded guilty to speeding and the driving without a license was stetted (postponed indefinitely). Apparently no one ever realized AJ had an outstanding warrant since early December in the same case in Circuit Court, because if they had, they also would have known that the indictment deprived the District Court of jurisdiction over at least one of the charges, driving without a license. Although, as JT’s lawyer, I knew AJ had also been charged, I gave it no thought, because AJ had a lawyer who I assumed was on top of it. This Wednesday when AJ was stopped for a traffic offense in Berkeley County, West Virginia he received a rude awakening. There was an unserved bench warrant for him from Maryland for the gun charges. AJ was jailed pending extradition to Maryland. JT called me to see what I could do.

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There has been quite a bit of litigation in the past few years on the subject of what witnesses must be produced by the government to prove the results obtained for scientific testing for drugs and/or alcohol. The Supreme Court has taken a case a year on this question, starting with Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)(no chemist), Briscoe v. Virginia, 130 S. Ct. 1316, 175 L. Ed. 2d 966 (2010)(who must subpoena the witness), Bullcoming v. New Mexico, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011)(substitute chemist), and Williams v. Illinois, 132 S. Ct. 2221 (2012)(underlying opinion in DNA match). The government usually claims that it is unnecessary to bring these chemists to court because what they are doing is very routine, in the regular course of business, that the results are not really used for their truth (huh?), and that it would be too burdensome to bring these witnesses to court. But as is reported in the following disturbing article, sometimes chemists lie, and lie a lot.

The story, which is reported in the Boston Globe on September 30, 2012, is titled “How chemist in drug lab scandal circumvented safeguards.” According to the article, state drug lab chemist Annie Dookhan has been charged with two counts of obstruction of justice, for falsifying drug test results and for falsifying her academic record. Dookhan is accused of skipping necessary tests (dry-labbing) altering records, contaminating samples, and signing other chemist’s names, placing in jeopardy between 34,000 and 60,000 convictions.

This sad story simply illustrates what we all already know, witnesses are human, and sometimes humans lie. While confronting the lying witness in court may not always or even frequently uncover the lie, to allow a witness who supplies testimony that is critical for a conviction to avoid appearing in court is unfathomable and cannot be justified by simple cost benefit analyses.

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Today the Supreme Court granted certiorari sought by Missouri in Missouri v. McNeely. McNeely was suspected of DUI when police had blood withdrawn without a warrant. The Supreme Court of Missouri held that a warrant was required when the facts fell outside the narrow exception created in Schmerber v. California. See State v. McNeely.

Schmerber allowed a seizure of blood without a warrant due to the exigency created by dissipation of alcohol in the blood where an accident occurred and the suspected driver was taken to the hospital. The Supreme Court said:

We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Since McNeely was not in an accident and was not taken to the hospital the Supreme Court of Missouri affirmed the trial court’s holding that a warrant was required.

The question to be addressed by the Supreme Court is whether to uphold the Missouri Supreme Court’s conclusion:

The patrolman here, however, was not faced with the “special facts” of Schmerber. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. Additionally, there was no evidence here that the patrolman would have been unable to obtain a warrant had he attempted to do so. The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge.

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Yesterday the Supreme Court announced its opinion in Williams v. Illinois. The decision was anxiously awaited by those of us who have followed the Supreme Court’s recent Confrontation Clause cases, namely Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. Melendez-Diaz had held that the chemist in a drug case must be brought to court by the government for cross-examination, and Bullcoming held that another chemist in a lab who had nothing to do with a test cannot take the place of the actual analyst who reported a blood alcohol reading in a DUI case.

In Williams v. Illinois, Williams was convicted of rape based on a DNA match. DNA was collected from semen found during the victim’s rape exam and the profile identified at Cellmark Laboratories in Germantown, Maryland. A different lab analyzed William’s DNA and identified a genetic profile. Illinois did not call anyone from Cellmark to testify, but rather called an expert who testified that the two samples were a DNA match.

The Supreme Court decided in an unusual plurality – 4-1-4 – that the expert could give the opinion of a match, even though no one from Cellmark testified to the underlying profile that was the basis for the opinion. What is unusual about the opinions issued in the case is that the five justices who voted to affirm the Illinois Supreme Court (and the rape conviction) did not agree why and that a majority of five agreed the plurality’s reasoning was wrong.
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I recently read a disturbing opinion piece in the New York Times – My Guantánamo Nightmare. The author, Lakhdar Boumediene, wrote the following:

On Wednesday, America’s detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as “undeliverable,” and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.

Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.

We are brought up to believe that such things cannot happen in our country. They can. And they are happening right now. Our criminal justice system is designed to place a premium on due process – notice of charges, the presumption of innocence, requiring the government to prove its case beyond a reasonable doubt, the right to a jury of one’s peers. A delicate balance exists that prevents persons accused of committing crimes from being held incommunicado without charges filed, supported by probable cause.
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A recent news story disclosed that Howard County police officers were required to write a predetermined number of tickets each shift. Judge throws out DUI case, saying police had quotas – Howard County police chief calls ruling a bad decision. According to the story the Howard County Police Chief was quoted saying that a federal grant to aide enforcement of traffic laws required officers average 2-4 citations per hour on the street.

McMahon said the grant “mandated that an average of 2-4 citations must be written per hour on each of these details by each officer or future funding may be withheld.”

As a result the District Court for Howard County granted a defense motion to dismiss the charges.

In future cases, defense lawyers must find out if their clients’ stops were made by officers operating under a quota, as reported by a follow up story. Drunk-driving quota case may lead to similar efforts elsewhere – Prosecutors look at possible appeal as defense lawyers suspect issue may affect other cases.

Leonard Stamm, a Prince George’s County lawyer who wrote a legal handbook called “Maryland DUI Law,” said the case puts lawyers who defend people charged with drunken driving on notice for a potential avenue for defense.

Though as a District Court ruling it has no bearing on other cases, defendants coming before other judges can bring it up. “Now that it’s out there, it’s something you have to look for,” Stamm said.

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