United States District Court, D. Maryland
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 by Appellee Michael E. Lechliter. The relevant issues have been briefed and the parties presented oral argument at a hearing on February 14, 2014. For the reasons that follow, the suppression order will be reversed and the case remanded for further proceedings.
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 (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 alcohol." ( Id. at 6-7). Officer Harper administered three field sobriety tests, which he estimated took "approximately 10 minutes" to complete, and concluded afterward that Appellee was under the influence of alcohol. ( Id. at 7). At approximately 11:00 p.m., Appellee was placed under arrest and seated in the front passenger seat of Officer Harper's police cruiser. ( Id. at 15). When the officer advised him that he would be taken "back to the station for... two breath samples, " Appellee "said he absolutely would not do that, " which prompted Officer Harper to call for "permission from [his] supervisor for a blood draw." ( Id. at 11). In accordance with U.S. Park Police policy, he called for a tow truck to impound Appellee's vehicle and "started doing the tickets" while he waited for it to arrive. ( Id. at 12, 17).
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). He added that he had "never" sought "a warrant for a blood test" in the past and that he was unaware of any procedure for obtaining a warrant "in the middle of the night[.]" ( Id. ). He further testified that, after the Supreme Court's ruling in McNeely, the United States Park Police immediately established an expedited warrant procedure. ( Id. at 19-20).
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:
As I see this case, the exigency - let me say the special fact that I see in this case[, ] using the term from [ Schmerber ] would be there is an accident here.
There was an accident in [ Schmerber ] and in that case... time had to be taken to investigate the accident. I think time had to be taken also in that case - if I recall there were personal injuries as well but I may be wrong on that.
And that is why I was asking the officer... how much time did it take to invest[igate] the accident itself? You know, and he - he did talk to the other driver and said that was about 10 minutes or so. But my impression is the fact that there was an accident here did not really delay the proceedings of the entire evening.
After the call for the tow truck, that is going to happen whether or not there is an accident. And that is as the officer stated. So everything that happened with the defendant's mother is happening while they are waiting for the tow truck and that did not cause a delay in any of the proceedings because they were going to have to wait for the tow truck anyway.
... [A]lthough like [ Schmerber ] there is an accident in this case, the fact that there was an accident in my opinion did not delay to any significant extent the proceedings that night or the course of conduct that night.
So I don't find that there are exigent circumstances here. And for the same reasons that I set out in the [ Brown ] opinion, I appreciate that there was no procedure or no expedited warrant procedure in effect at that time, and I appreciate that ...