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United States v. Drew

United States District Court, D. Maryland

June 13, 2019

UNITED STATES OF AMERICA
v.
DARIUS DREW Defendant

          MEMORANDUM OPINION AND ORDER OF COURT

          Thomas M. DiGirolamo United States Magistrate Judge

         This matter is before the Court on Defendant's Motion to Suppress Evidence (ECF No. 22), the Government's Memorandum of Law-Breath Alcohol Test (ECF No. 24), and Defendant's Supplemental Memorandum Regarding Defendant's Motion to Suppress (ECF No. 23). On April 22, 2019, the Court conducted a hearing on the defendant's motion to suppress. For the reasons stated below, the defendant's motion is DENIED.

         BACKGROUND

         The sole witness at the hearing, United States Park Police Sergeant Adam Zielinski, testified that on Saturday, August 11, 2018, at approximately 4:00 a.m., he was conducting speed enforcement on the Baltimore-Washington Parkway (the “Parkway”), a federal area maintained by the National Park Service and within the special maritime and territorial jurisdiction of the United States. See 18 U.S.C. § 7(3); United States v. Smith, 701 F.3d 1002, 1004 (4th Cir. 2012); United States v. Rubio, 87 F.3d 1309, No. 95-5421, 1996 WL 329630, at *1 n.1 (4th Cir. June 17, 1996) (per curiam) (unpublished table decision). While he was monitoring traffic, he observed a vehicle traveling at a high rate of speed. He visually estimated the speed of the vehicle at 80 miles per hour. The speed limit in that area is 45 miles per hour. Sergeant Zielinski's radar unit registered the speed of the vehicle at 79 miles per hour. After the vehicle passed his location, Sergeant Zielinski pulled onto the Parkway to stop the vehicle. As he followed the vehicle northbound on the Parkway, the vehicle was travelling in the left lane of travel. Sergeant Zielinski observed the vehicle cross into the middle lane of travel and then swerve back into the left lane on six occasions. Sergeant Zielinski was approximately three to four car lengths behind the vehicle when he observed this movement. He testified that there were no obstacles or debris in the road that would have caused the driver to swerve into the middle lane as he observed. Sergeant Zielinski activated his emergency equipment and pulled the vehicle over. He made contact with the driver, Darius Drew, the defendant.

         Sergeant Zielinski smelled the odor of alcohol coming from the interior of the defendant's vehicle. The defendant admitted that he had consumed one beer. He stated that he was on his way to pick up his wife whose car had broken down. Sergeant Zielinski noticed that the defendant's speech was slurred and that he had red, bloodshot, and watery eyes. Believing that the defendant was under the influence of alcohol, Sergeant Zielinski advised the defendant that he needed to step out of the vehicle so that he could conduct field sobriety tests. The defendant complied without objection. After the defendant stepped out of his vehicle, Sergeant Zielinski administered three field sobriety tests: the horizontal-gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test. Sergeant Zielinski testified in detail as to the defendant's performance on the tests. At the conclusion of the field sobriety tests, the defendant submitted to a roadside breath test, which revealed the presence of alcohol. At that point, Sergeant Zielinski placed the defendant under arrest and transported him to the United States Park Police District Four Station.

         At the station Sergeant Zielinski advised the defendant of his rights regarding the administration of a breath test to determine his blood alcohol level pursuant to 36 C.F.R. § 4.23. Sergeant Zielinski gave the defendant a written copy of the testing notice for his review and read the notice to the defendant.[1] In the course of advising the defendant of his rights regarding the breath test, Sergeant Zielinski made several ancillary statements to the defendant. He testified that he tells people it is in their interest to cooperate; that they can be charged with a crime if they do not cooperate; that, if they cooperate, he will work with them and they could get out that night; that he has the ability to seek a warrant; and that, if they do not cooperate, they could be held over the weekend until they see a magistrate judge. Sergeant Zielinski testified that these statements were part of the conversation he had with the defendant before the administration of the breath test. After reading the testing notice to the defendant and making these statements to the defendant, the defendant signed the testing notice indicating his consent to the breath test. Sergeant Zielinski then administered the breath test after the completion of a twenty-minute observation period. After the breath test and administrative processing were completed, Sergeant Zielinski issued the defendant several violation notices charging him with, among other things, operating a motor vehicle under the influence of alcohol, in violation of 36 C.F.R. § 4.23(a)(1), and with operating a motor vehicle with a breath alcohol concentration (“BAC”) of .08 or above, in violation of 36 C.F.R. § 4.23(a)(2).

         DISCUSSION

         A. Field Sobriety Tests

         In his motion to suppress, the defendant first challenges the admissibility of the results of the field sobriety tests. The defendant argues that Sergeant Zielinski lacked the requisite legal justification to subject the defendant to the field sobriety tests. The Court disagrees. A law enforcement officer may require a driver to participate in field sobriety tests if the officer has a reasonable suspicion that the driver is under the influence of alcohol. Leon v. Summit County, 755 Fed.Appx. 790, 794 (10th Cir. 2018); Bradley v. Reno, 632 Fed.Appx. 807, 810-11 (6th Cir. 2015); Vondrak v. City of Las Cruces, 535 F.3d 1198, 1206 (10th Cir. 2008); Rogala v. District of Columbia, 161 F.3d 44, 52 (D.C. Cir. 1998); Burno-Whalen v. State of Maryland, No. GJH-15-564, 2016 WL 1259556, at *6 (D. Md. 2016) (citing, inter alia, Blasi v. State, 893 A.2d 1152 (Md. Ct. Spec. App. 2006)). Here, Sergeant Zielinski had a reasonable suspicion that the defendant was under the influence of alcohol based on his observations of (1) the defendant's speed and crossing back and forth between lanes; (2) the odor of alcohol coming from the defendant's vehicle; (3) the defendant's admission that he had consumed alcohol; and (4) the defendant's slurred speech and red, bloodshot, and watery eyes. See Leon, 755 Fed.Appx. at 794-95; Vondrak, 535 F.3d at 1207 (citing cases); Amundsen v. Jones, 533 F.3d 1192, 1200 n.4 (10th Cir. 2008) (citing cases); United States v. Caine, 517 F.Supp.2d 586, 588-90 (D. Mass. 2007); United States v. Frantz, 177 F.Supp.2d 760, 763-64 (S.D. Ohio 2001). Therefore, Sergeant Zielinski was justified in requiring the defendant to perform field sobriety tests.

         B. Breath Test Results

         The defendant next challenges the admissibility of the breath test results. The defendant argues that the ancillary statements made by Sergeant Zielinski to the defendant in the course of advising the defendant of his rights in regard to the breath test rendered the breath test unreasonable for Fourth Amendment purposes.

         The Fourth Amendment provides that “[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.” U.S. Const. amend. IV. Thus, “[t]he Fourth Amendment prohibits only unreasonable searches.” Grady v. North Carolina, 135 S.Ct. 1368, 1371 (2015) (per curiam). With limited exceptions, warrantless searches are presumptively unreasonable. United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 3304 (1984). Exceptions to the Fourth Amendment's warrant requirement include consent, Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045 (1973), search incident to a lawful arrest, Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 1716 (2009), and exigent circumstances, Mincey v. Arizona, 437 U.S. 385, 393-94, 98 S.Ct. 2408, 2414 (1978).

         The Fourth Amendment applies to a breathalyzer test. Maryland v. King, 569 U.S. 435, 446, 133 S.Ct. 1958, 1969 (2013) (citing Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 1413 (1989)). Thus, a warrant would presumptively be required before a breath test could be administered, unless an exception to the warrant requirement applies. It is undisputed that Sergeant Zielinski did not seek a warrant before administering the breath test to the defendant. However, in this case, two exceptions to the warrant requirement are implicated-search incident to a lawful arrest and consent.

         A breath test may be administered as a search incident to a lawful arrest for drunk driving. Birchfield v. North Dakota, 136 S.Ct. 2160, 2185 (2016). Breath tests are unique, however. To administer lawfully a breath test and obtain the breath sample, the police not only have to establish a legal justification for the test (a warrant or the existence of an exception to the warrant requirement) but also obtain the cooperation of the suspect in giving a breath sample. Even when lawful grounds for the administration of a breath test exist, a DUI ...


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