State v. Fawcett, Minn.Ct.App., 01/11/2016. This is a riff on the unrelenting litigation over the supposed right to drive drunk but a clever one all the same. The question here is what happens when the cops request and get a search warrant for a blood draw to test for suspected alcohol impairment but then the lab tests that blood sample for drugs as well? Is the positive drug test admissible at trial?
Officers responded to a two-car injury accident. Ms. Fawcett, the driver of one of the cars, was one of those injured. Two officers suspected that Ms. Fawcett may have been driving under the influence of alcohol; she admitted to having had two or three beers. An officer read the implied consent advisory to Ms. Fawcett, but because the officer only suspected alcohol consumption, she only read the part about testing to determine if Ms. Fawcett was under the influence of alcohol. Ms. Fawcett was not advised about testing to determine whether she was under the influence of a controlled substance.
Meantime, another officer was getting a search warrant for a blood draw. The application said nothing about suspicions of drug use:
In his application for a search warrant and supporting affidavit, Detective Johann stated the following facts: There had been a motor-vehicle crash and one or more persons suffered bodily harm as a result of the crash. Officers identified Fawcett as the driver of one of the vehicles and stated that she admitted that she had two or three drinks “just prior to” the crash. Fawcett smelled of an alcoholic beverage. Officers at the scene believed that Fawcett had been drinking. Detective Johann applied for the warrant on the grounds that Fawcett’s blood sample “constitutes evidence which tends to show a crime has been committed, or tends to show that a particular person has committed a crime.” He also stated that he sought a blood sample “as evidence of the crime of criminal vehicular operation/homicide.”
While waiting around for the search warrant Ms. Fawcett agreed to submit to a blood test; officers waited just the same until they had the search warrant to obtain it. Before drawing blood, however, Ms. Fawcett asked for a breath test. Officers gave her a preliminary breath test; the result was 0.00. A nurse then drew the blood, which the BCA tested; there was no alcohol but there were controlled substances.
In the ensuing prosecution for criminal vehicular operation, the trial court suppressed evidence of drugs in the blood sample. The trial court said that the blood sample had been lawfully obtained under the search warrant and that testing of that blood sample for alcohol was also lawful under the warrant. Given the officer's rationale for the search warrant - nothing about suspicions of drugs - the trial court thought that alcohol testing was as far as the warrant went. The state appealed this pretrial ruling.
And wins. The state said that once it lawfully obtained a person's blood sample for the purpose of chemical analysis that person has lost any legitimate expectation of privacy in any test result obtained from that sample. This is true, the state said, regardless of the scope of any search warrant: ask for alcohol testing and if you get that you get drugs testing for free. Put another way, the search warrant authorized the "search" of Ms. Fawcett's body in order to "seize" a quantity of her blood. After that, it was none of Ms. Fawcett's business what the state reasonably did with it. Sort of like setting out the trash.
The court of appeals relied upon language from Schmerber v. California, 384 U.S. 757 (1966), (not the exigency business) that said that for Fourth Amendment purposes police must be justified in requiring the blood test, and must employ reasonable "means and procedures" to get it. A handful of state courts have also relied upon Schmerber to conclude that once the state has lawfully obtained the blood sample there is no reasonable testing of that blood that implicates further consideration of the Fourth Amendment. Once the blood lawfully left Ms. Fawcett's body she could not complain of any reasonable use of it by the state.
The court does acknowledge that its holding could be taken too far, like drawing blood to test for suspected alcohol and then sending it to the BCA for DNA testing:
Once a blood sample has been lawfully removed from a person’s body, a person loses an expectation of privacy in the blood sample, and a subsequent chemical analysis of the blood sample is, therefore, not a distinct Fourth Amendment event. The district court considered that such a rule necessarily means that a person’s blood could “thereafter be tested without a warrant for any purpose at any time, such as future drug testing or DNA comparisons.” Although such circumstances are not before us, we note that Schmerber dictates that a standard of reasonableness controls and that an unnecessary invasion of privacy interests would most certainly raise concerns of reasonableness.
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