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United States v. Jubor

United States District Court, D. Maryland

October 9, 2019

UNITED STATES OF AMERICA
v.
NATHANIEL K. JUBOR, Defendant

          MEMORANDUM OPINION

          THOMAS M. DIGIROLAMO, UNITED STATES MAGISTRATE JUDGE

         In this DUI case, the defendant moves to suppress the results of a chemical test of a sample of his blood drawn without his consent and without a judicial warrant. The government asserts that exigent circumstances justified the drawing of the defendant's blood without a warrant. Alternatively, the government argues that the good-faith exception to the exclusionary rule saves the blood test results from suppression. Before the Court are the defendant's Motion to Suppress Evidence (ECF No. 22), the government's Opposition thereto (ECF No. 24), the defendant's Post-Hearing Memorandum in Support of Defendant's Motion to Suppress (ECF No. 30), and the government's supplemental memorandum (ECF No. 31). The Court held a hearing on the motion on June 10, 2019. For the reasons stated below, the Court finds that the government's arguments are unavailing and suppresses the evidence flowing from the warrantless blood draw.

         BACKGROUND

         A. BLOOD DRAW POLICY

         In early 2018, the Court adopted a procedure to govern the issuance of blood draw warrants requested by the United States Park Police (“USPP”). That procedure, which was memorialized in an email from the undersigned to the USPP liaison officer and became effective on January 19, 2018, stated:

The United States Park Police may seek to obtain a warrant for a blood draw only in cases where there is a fatality, serious injury or other extraordinary circumstances. Before the duty magistrate judge is called, the Park Police must first obtain the approval of an Assistant United States Attorney.

         Gov't's Ex. 1.

[I]n order to provide the USAO and the USPP with some guidance in regard to the implementation of the revised blood draw policy, the magistrate judges have discussed circumstances which would be considered “extraordinary” under the revised policy.
In addition to cases involving a fatality or serious bodily injury, the magistrate judges agree that “extraordinary” circumstances would include cases involving: (1) a suspect under the influence of drugs (as opposed to alcohol); (2) a suspect that is so far under the influence of alcohol and/or drugs that he/she is incoherent and unable to effectively communicate with the police officer or participate in field sobriety tests[;] and (3) a suspect whose record shows a prior DUI conviction. Clearly, this is not an exhaustive list of “extraordinary” circumstances and there will be other situations which warrant a request for a blood draw. It would . . . not be appropriate or possible to formulate a complete list of “extraordinary” circumstances as each case must be governed by its own particular facts, with the independent determination of the AUSA that the facts and circumstances of the particular case constitute “extraordinary” circumstances under the new policy.

Id. (first alteration in original) (emphasis added) (the “Blood Draw Policy”). The Blood Draw Policy was adopted as a result of the Supreme Court's 2013 decision in Missouri v. McNeely, 569 U.S. 141 (2013).

         Before McNeely was decided, it was the law in the Fourth Circuit that the natural metabolization of alcohol in the bloodstream created a per se exigency in DUI cases, justifying nonconsensual, warrantless blood draws.[1] “[I]n this district, the court, prosecutors, and police were all operating under the belief that a warrant was not necessary to obtain a nonconsensual blood draw where there was probable cause for DWI.” United States v. Lechliter, 3 F.Supp.3d 400, 406 n.3 (D. Md. 2014); see United States v. Brooks, Criminal No. PWG-14-0053, 2014 WL 2042028, at *4 (D. Md. May 16, 2014). As such, before McNeely, the Court was never requested to issue a blood draw warrant. In McNeely, the Supreme Court held that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases. McNeely, 569 U.S. at 145. Rather, “that exigency in this context must be determined case by case based on the totality of the circumstances.” Id. In the absence of consent, therefore, a warrant must be obtained to draw a DUI suspect's blood, unless exigencies in addition to the natural metabolization of alcohol in the bloodstream are present.

         The impact of the McNeely decision on the Court was profound in light of the extraordinary number of DUI prosecutions in this district. In 2018 the District of Maryland ranked first in the country in the number of DUI-related violation notices issued, accounting for more than 22% of all DUI-related violation notices issued nationally. E-mail from Monte K. Tingle, Supervisory CVB Clerk, Central Violations Bureau, to the undersigned (Aug. 2, 2019, 12:09 EDT) (on file with the undersigned). Most of the DUI cases prosecuted in this district involve incidents occurring on three heavily travelled highways: the Baltimore-Washington Parkway, the Suitland Parkway, and the Clara Barton Parkway. These highways are maintained by the National Park Service and are located 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). They are policed by the USPP.

         In anticipation of the significant number of requests for blood draw warrants to come as a result of the McNeely holding, the Court acted promptly to formulate a procedure to govern the issuance of blood draw warrants. On the same day that McNeely was decided, the Chief United States Magistrate Judge consulted with the United States Attorney's Office (the “USAO”) and the USPP. It was decided that each week one of three magistrate judges would be assigned to blood draw duty. The home and cell phone numbers of these duty magistrate judges were provided to the USPP. These duly assigned magistrate judges would be available to field blood draw warrant requests 24 hours per day, 365 days of the year. In the event the USPP made a DUI arrest and desired a warrant for a blood draw, the arresting officer or a supervising officer would directly call the magistrate judge on duty. The prior review and approval by an Assistant United States Attorney (“AUSA”) was not required. After hearing the statement of probable cause from the officer, the magistrate judge would telephonically grant or deny the warrant. The conversation between the officer and the magistrate judge would be recorded on the magistrate judge's iPad.

         The first request for a blood draw warrant occurred at 1:56 a.m. on April 18, 2013, less than 24 hours after the McNeely opinion was issued. Over the next several years, the number of requests for blood draw warrants increased from zero (pre-McNeely) to several hundred (post-McNeely), with the great majority of requests made in the middle of the night. The volume and timing of these pending requests placed a significant stress on court resources. To address this issue, in late 2017, the Court undertook an evaluation of the procedure then in place. After much discussion and consideration, the Court adopted the Blood Draw Policy.

         The Blood Draw Policy strikes a reasonable balance between the efficient utilization of court resources and the ability of the USPP to obtain evidence of blood alcohol content in DUI cases. It modified the prior policy adopted in the wake of McNeely in several important respects. First, it required the review and approval by an AUSA before a request for a blood draw warrant was made to a magistrate judge. This requirement is consistent with the long-standing policy in this district that, before a request for any search warrant is made to a magistrate judge, it is first reviewed and approved by an AUSA. This requirement provides assurance to the Court that an AUSA independently reviewed the legal and factual sufficiency of the warrant application before the USPP presented the request to the Court.

         The Blood Draw Policy also modified the prior procedure by providing a non-exclusive list of circumstances in which the Court would consider issuing a blood draw warrant. In adopting the Blood Draw Policy, the Court envisioned that there would be occasions where the AUSA would not approve a request for a blood draw warrant and, therefore, blood would not be tested. The Court was cognizant, however, of the Supreme Court's 2016 holding in the case of Birchfield v. North Dakota, 579 U.S.__, 136 S.Ct. 2160 (2016). In Birchfield, the Supreme Court affirmed the criminal prosecution of a DUI suspect for refusing to consent to a breath test. 136 S.Ct. at 2186-87. In the context of prosecutions involving the USPP, 36 C.F.R. § 4.23(c)(2) provides that “[r]efusal by an operator to submit to a [breath test] is prohibited and proof of refusal may be admissible in any related judicial proceeding.” Therefore, in cases where the AUSA does not approve a blood draw warrant, the government may still prosecute the suspect for refusing to consent to the breath test. The penalty for refusing a breath test is the same as for DUI - six months' incarceration and a $5, 000 fine. Further, the sentence for refusing a breath test can run consecutively to the sentence for the DUI offense. Also, in adopting the Blood Draw Policy, the Court recognized that the government may still prosecute a DUI suspect under the general DUI statute (36 C.F.R. § 4.23(a)(1)) without the results of a blood test. Finally, even in a case where a DUI suspect is only convicted of test refusal, in fashioning a sentence the Court would be able to consider evidence relating to uncharged or even acquitted conduct related to the defendant's driving under the influence of alcohol. United States v. Saxby, No. 1:11-CR-132, 2012 WL 1230730, at *2 (M.D. N.C. Apr. 12, 2012); see United States v. Grubbs, 585 F.3d 793, 798-803 (4th Cir. 2009); United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994); U.S.S.G. § 1B1.3. Defendants are convicted in federal courts across the country of DUI-related offenses in cases where the government does not have evidence of blood alcohol content or where such evidence is excluded. See United States v. Stanton, 501 F.3d 1093, 1100 (9th Cir. 2007) (affirming defendant's conviction under 36 C.F.R. § 4.23(a)(1) on the basis of the totality of circumstantial evidence at trial despite magistrate judge's refusal to admit breath test results because of government's failure to lay proper foundation); United States v. Nguyen, No. CR F 06-0075 AWI, 2008 WL 540230 (E.D. Cal. Feb. 25, 2008) (district court affirming defendant's conviction under 36 C.F.R. § 4.23(a)(1), even though magistrate judge had acquitted defendant under § 4.23(a)(2)).

         B. FACTS

         After considering the evidence produced at the hearing on the motion to suppress, the Court finds the following facts. The government's primary witness at the hearing on the motion to suppress was USPP Sergeant Adam Zielinski. Sergeant Zielinski testified that he had been a police officer for more than sixteen years. He had been a supervisor in the USPP's Traffic Safety Unit since 2011. The Traffic Safety Unit is a unit within the USPP that specializes in drug and alcohol training programs. Sergeant Zielinski is also qualified as a drug recognition expert, a fatal-crash reconstructionist, and a certified breathalyzer technician. He had made approximately 2, 500 DUI arrests and administered field sobriety tests approximately 3, 500 times in his career.

         On Saturday, February 9, 2019, at about 4:00 a.m. Sergeant Zielinski received a call to assist another officer who had stopped a vehicle and suspected the driver to be under the influence of alcohol. He was advised that the vehicle was stopped because it failed to slow down or move over for the officer whose police cruiser was on the shoulder of the road with its emergency lights on.[2] Sergeant Zielinski proceeded to the location of the stop, which was on the northbound side of the Baltimore-Washington Parkway, south of I-495. Upon his arrival, Sergeant Zielinski was directed to the vehicle that the other officer had stopped. The defendant was seated in the driver's seat and was the sole occupant. The defendant advised Sergeant Zielinski that he was coming from a club in Bladensburg, Maryland, although he did not admit that he had anything to drink there. While speaking with the defendant, Sergeant Zielinski smelled an odor of alcohol coming from the vehicle. Suspecting the driver to be under the influence of alcohol, Sergeant Zielinski directed the defendant to step out of his vehicle for field sobriety testing. Because of the extremely cold temperature, Sergeant Zielinski only administered the horizontal-gaze nystagmus (“HGN”) test and the vertical-gaze nystagmus (“VGN”) test.[3] Sergeant Zielinski testified that the defendant exhibited six clues on the HGN test, which signified to him that the ...


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