State v. Fawcett, Minn.S.Ct., 8/24/2016. A court that prides itself on precision use of words, constantly running to the nearest dictionary, is not so persnickety when called upon to discern a cop's application for a search warrant. Fresh off her victory in State v. Bernard, - a breath test is a search incident to a lawful arrest and thus an exception to the warrant requirement, Birchfield v. North Dakota, ___ U.S. ___ (2016) - Chief Justice Gildea delves into alchemy to turn alcohol into narcotics.
Ms. Fawcett ran a right light and plowed into another car, causing injuries to the driver of that other car. Officers smelled alcohol on Ms. Fawcett's breath and she admitted that she had drunk two to three beers earlier. Meantime, another officer applied for a warrant to search a sample of Ms. Fawcett's blood for "evidence of the crime of criminal vehicular operation/homicide." The officer's application stated the belief that Ms. Fawcett was under the influence of alcohol. The judge then signed a search warrant that authorized the officers to cause a blood sample to be taken from Ms. Fawcett and forwarded to an approved lab for testing. The BCA tested the blood sample for alcohol and came up dry. They then tested the blood sample for drugs and found two controlled substances.
The state charged Ms. Fawcett with criminal vehicular operation. She moved to suppress all evidence of the presence of drugs, saying that the warrant application did not provide any basis for police to test her blood for controlled substances. The trial court granted that motion. The court of appeals reversed the trial court saying that once the state "seized" a quantity of Ms. Fawcett's blood it was none of her business just what the state did with it.
In a footnote, Chief Justice Gildea nixed that theory by the court of appeals, saying that Ms. Fawcett retained some expectation of privacy in her blood that had been seized pursuant to a search warrant although the court does not define the extent of that expectation. The Chief then gets down to it and announces the rather astonishing conclusion that the trial judge had enough information to conclude that there was a "fair probability" that evidence of intoxicants, whether alcohol, controlled substances, or a combination of the two would be found in Ms. Fawcett's blood:
Considering all the circumstances set forth in the warrant application and supporting affidavit, including L.S.’s visible injuries, the eyewitness’s placement of Fawcett behind the wheel of a vehicle that ran a red light, the odor of alcohol on Fawcett’s breath, the officers’ conclusion that she had been drinking, and Fawcett’s admission that she had been drinking prior to the crash, the issuing judge had a substantial basis to conclude there was a fair probability that evidence of intoxicants, whether alcohol, controlled substances, or a combination of alcohol and controlled substances would be found in Fawcett’s blood.
The court justifies this result by stating two things: First, the whole point of getting a search warrant is to put the decision in the hands of a judge to make an independent assessment of the existence of probable cause; and, Second, that independent assessment includes drawing reasonable inferences from the materials supplied to that judge by the applicant for the warrant. But, this actually turns the more traditional analysis on its head; courts constantly compliment police officers for their acumen in ferreting out what's really going on - they're the experts - but here the court is saying that the cop got it wrong and it was for the judge to do the ferreting.
Justice Stras, joined in part by Justice Lillehaug, dissents. Justice Stras, ever the literalist, points out that the search warrant application only talked about alcohol and never about drugs, and so the application failed to establish probable cause to search for controlled substances.
The court has not said why facts suggesting that Fawcett negligently operated her vehicle while under the influence of alcohol also provide reason to believe that controlled substances would be found in her blood. In essence, the court has reached the unsupported conclusion that, if there is a fair probability that a person has recently used alcohol, there is a fair probability that the person has used drugs as well.
Put another way, smelling alcohol on a driver's breath is easy. After that it's anyone's guess whether the driver's driving behavior was the result of that alcohol, the result also of drugs, or the result of texting as well. Who knows?
Both the majority and the dissent give lip service to supposed limits to the breadth of this opinion. Each says, for instance, that a search warrant for blood to test for the presence of alcohol would not authorize a search for other private medical facts about a person. This acknowledgment raises the question whether this is really a smart phone case. Just as with smart phones, there's just too much private and otherwise sensitive information in a tube of blood. If he happens to get pulled over for suspected DWI heading up I-94 on his way to Wall Drugs does Chief Justice Roberts really want the BCA checking his genetic markers?
Justice Stras also made another pitch to adopt the Leon good faith exception to the exclusionary rule, but gets no takers.