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United States v. Brown

United States District Court, Fourth Circuit

October 11, 2013

UNITED STATES OF AMERICA
v.
CEDRIC S. BROWN, Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS M. DiGIROLAMO, Magistrate Judge.

In Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013) the Supreme Court held that the natural dissipation of alcohol in the bloodstream does not establish a per se exigency that suffices on its own to justify an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases. Rather, that exigency must be determined case by case based on the totality of the circumstances. McNeely, 133 S.Ct. at 1556. The Supreme Court issued its decision on April 17, 2013. Three questions are presented in this case:

1. Should the decision in McNeely be applied retroactively to the facts of this case?

2. Did the taking of the defendant's blood for testing constitute a violation of his Fourth Amendment rights?

3. If there was a violation of the defendant's Fourth Amendment rights, should the results of the blood test be excluded at trial?

FACTS

On November 21, 2012 at 11:02 p.m., U.S. Park Police Officer Lisa Marie Weisbaum was patrolling the Baltimore-Washington Parkway, a federal highway located in the State of Maryland and within the special maritime and territorial jurisdiction of the United States. Officer Weisbaum noticed a blue Dodge Intrepid traveling ahead of her in the left lane. She observed the vehicle cross over the white fog line separating the left travel lane and the shoulder, and then swerve back into the left lane. Her radar unit indicated that the vehicle was travelling 72 mph in a 55 mph zone. Officer Weisbaum activated her emergency equipment and stopped the vehicle. She found the defendant to be the driver and sole occupant. Officer Weisbaum detected an odor of alcohol coming from the vehicle. She also noticed that the defendant's eyes were red, bloodshot and watery. In response to the officer's questions, the defendant stated that he did not have anything to drink, that he was coming from work, and was on his way home. Officer Weisbaum then asked the defendant to step out of the vehicle so that she could administer field sobriety tests. Once outside the vehicle, the defendant had difficulty standing and had to use his car for support. He nearly stumbled into the travel lane. Officer Weisbaum detected the odor of alcohol coming from the defendant's person once he was outside of the vehicle. Because of the close proximity of the defendant's car to the travel portion of the highway and the defendant's instability, Officer Weisbaum administered just one field sobriety test - the horizontal gaze nystagmus test. The defendant's performance on that test along with her other observations led Officer Weisbaum to believe that the defendant was under the influence of alcohol. She then administered a preliminary breath test at the scene. The result was a.16 grams of alcohol per 210 liters of breath. Officer Weisbaum then placed the defendant under arrest and placed him in the back of her police cruiser. An inventory search of the defendant's car at the scene revealed an open container of beer in the center console.

Officer Weisbaum then transported the defendant to the police station. She advised him that she was taking him to the station for processing and to administer a breath test. They arrived at the police station at 11:35 p.m. There, Officer Weisbaum observed the defendant for 20 minutes, which is required procedure prior to the administration of the breath test. This observation period is necessary to assure the accuracy of the breath test results. During the observation period Officer Weisbaum observed the defendant for any coughing, belching, hiccupping - all factors which could influence the breath test results. While Officer Weisbaum was observing the defendant in preparation of the breath test, another officer engaged the defendant in the booking process. At the conclusion of the observation period, Officer Weisbaum administered the breath test using an Intoximeter unit. Two attempts were made, but the defendant did not provide a sufficient breath sample on either one. Officer Weisbaum believed that the defendant could provide a sufficient sample because he had done so at the scene of the traffic stop when she administered the preliminary breath test. She concluded that the defendant's failure to provide a sufficient sample was intentional and for the purpose of delay.

In accordance with standard U.S. Park Police procedures, Officer Weisbaum sought permission from a supervising officer to transport the defendant to the hospital for a blood draw. After she obtained that permission, Officer Weisbaum advised the defendant that since he did not give a sufficient sample for the breath test, she was going to transport him to the hospital for a blood draw. The defendant advised her that he would not consent to a blood draw. Officer Weisbaum then transported the defendant to the hospital for a blood draw, which was accomplished without incident. Officer Weisbaum estimated that the blood draw was delayed approximately 30 minutes due to the defendant's failure to cooperate in the administration of the breath test at the station. The defendant was subsequently issued violation notices for several misdemeanors including (1) driving under the influence of alcohol and/or drugs, in violation of 36 C.F.R. §4.23(a)(1); (2) driving with an alcohol concentration in the operator's blood or breath of 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath, in violation of 36 C.F.R. §4.23(a)(2); and (3) refusal to submit to a chemical test for alcohol, in violation of 36 C.F.R. §4.23(c)(2).

At a suppression hearing, Officer Weisbaum testified that she did not attempt to obtain a warrant prior to taking the defendant to the hospital for the blood draw because she did not believe she was legally required to do so. It was her understanding of the applicable implied consent law that a DWI suspect did not have the right to refuse to submit to a chemical test to determine blood-alcohol content. She 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. She testified that she had never obtained a warrant in the past under these circumstances and that she followed the standard procedure in this case.

Detective Jose Bumbry of the U.S. Park Police confirmed that it was not the policy of the U.S. Park Police to obtain a warrant prior to the nonconsensual taking of a DWI suspect's blood. He also testified about 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. He testified that the procedure could take from five to nine hours. Sergeant Anthony Giannino of the U.S. Park Police testified that on April 17, 2013, after being notified of the McNeely decision, he contacted the chief United States Magistrate Judge in an effort to devise an expedited procedure to obtain warrants for blood draws. During the course of that same day, Sergeant Giannino and the chief Magistrate Judge devised such a procedure. In fact, the new procedure was first used later that same night. Since the new procedure was implemented, approximately 20 warrants for blood draws have been applied for and none have been declined.

RETROACTIVITY OF McNEELY

As a general rule, a decision of the Supreme Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered. United States v. Johnson, 457 U.S. 537, 562 (1982); see also Griffith v. Kentucky, 479 U.S. 314, 324 (1987). In Johnson, the Supreme Court held that the Fourth Amendment ruling announced in Payton v. New York, 100 S.Ct. 1371 (1980), prohibiting police from making a warrantless, nonconsensual entry into a suspect's home for the purpose of making a routine felony arrest, applied retroactively to a case pending on direct appeal. Johnson, 457 U.S. at 554-55. Recently, in Davis v. United States, 131 S.Ct. 2419 (2011), the Supreme Court applied its decision in Arizona v. Gant, 129 S.Ct. 1710 (2009), governing the warrantless search of an automobile incident to the arrest of its occupants, retroactively to a case pending on direct appeal. The present case falls in line with this Supreme Court precedent. The Court finds, therefore, that the decision in McNeely applies retroactively to the present case.

FOURTH AMENDMENT VIOLATION

The Fourth Amendment provides "[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, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized". In Schmerber v. California, 384 U.S. 757, 766-72 (1966), the Supreme Court recognized that the drawing of an individual's blood for evidentiary purposes implicates the Fourth Amendment, requiring that a warrant be obtained. Over the years, the Supreme Court has carved out exceptions to the Fourth Amendment's warrant ...


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