Four hour delay to obtain search warrant an exigency, at least for now

The court of appeals decided its first post-Missouri v. McNeely alcohol exigency case yesterday.  The court in State v. Dahlquist determined that the four to five hours that the arresting officer estimated would have elapsed had he first traveled to the intake center at the jail to obtain a search warrant and then taken the defendant to the hospital for a blood draw constituted an exigency sufficient to excuse the Fourth Amendment’s warrant requirement. Thus, the Dahlquist court held that the trial court properly denied the defendant’s motion to suppress as the warrantless withdrawal of the defendant’s blood at a nearby hospital over his objection was lawful. What’s most interesting about the case is not its holding, presaged by State v. Fletcher, 202 N.C. App. 107 (2010), and McNeely itself, but instead its dicta. The court stated that while it found an exigency in this case, officers should consider amending their post-arrest procedures in future cases in two respects. First, where the technology is available, they should testify in support of search warrants by videoconference as authorized by G.S. 15A-245. Second, rather than estimating wait times based on past experience, officers should call magistrates’ offices and hospitals to obtain current information about wait times.

Facts. Dahlquist was a relatively routine impaired driving case. The defendant was stopped at a DWI checkpoint in the Charlotte area in the early morning hours. He smelled strongly of alcohol, admitted to drinking, and failed several field sobriety tests. He was arrested for DWI and taken to a Blood Alcohol Testing (“BAT”) mobile for purposes for a breath test. He refused to submit to the test. The officer then took the defendant to Mercy Hospital where his blood was drawn without his consent.

Procedural history. The defendant moved in superior court to suppress the evidence of his alcohol concentration obtained from the warrantless withdrawal of his blood. The superior court denied the motion, and the jury found him guilty of driving while impaired. The defendant appealed the denial of his motion to suppress.

Court of appeals opinion. The appellate court noted the Supreme Court’s holding in McNeely that the natural dissipation of alcohol, standing alone, does not create an exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement. As a result, whether an exigency exists must be determined case by case based on a totality of the circumstances. Thus, the question before the Dahlquist court was whether the circumstances in that case gave rise to an exigency sufficient to justify a warrantless search.

As previously noted, the trial court concluded that they did, and the court of appeals agreed. The officer took the defendant directly to the hospital because “he knew that over time the amount of alcohol in blood dissipates.” Slip op. at 7. The officer also “knew from his years of experience” that the hospital was fifteen minutes away and that he could obtain a sample of the defendant’s blood from hospital staff within an hour after arriving. Id. The officer “surmised from his past experience that, on a weekend night, it would take between four and five hours to obtain a blood sample if he first had to travel to the [magistrate’s office] to obtain a search warrant.” Slip op. at 8.

Dicta. After concluding that the trial court properly denied the defendant’s motion to suppress, the court of appeals elected to “elaborate on one point” related to the procedure for obtaining a warrant, namely “advances in technology,” a topic also addressed in McNeely. The Supreme Court in McNeely noted that federal magistrate judges may issue warrants based on information communicated by telephone or other electronic means and that most states allow police or prosecutors to apply for search warrants remotely using the telephone, video-conferencing and electronic communication. The Dahlquist court noted that G.S. 15A-245(a) was amended in 2005 to allow a search warrant to be issued based on audiovisual transmission of oral testimony under oath or affirmation from a sworn law enforcement officer to the issuing official. (Before this procedure may be used, the senior resident superior court judge and chief district court judge must obtain the approval of the Administrative Office of the Courts.) Yet the officer in Dahlquist assumed he had only two options:  (1) travel to the magistrate’s office and risk the loss of evidence; or (2) proceed to the hospital without a warrant. The court encouraged officers to consider the option of testifying in support of search warrants by videoconference.

As noted earlier, the court also said that the “better practice in such cases might be for an arresting officer, where practical, to call the hospital and the [magistrate’s office] to obtain information regarding the wait times on that specific night, rather than relying on previous experiences.”

Practical concerns. When G.S. 15A-245 was amended in 2005 to allow officers to testify in support of search warrants by videoconference, my colleague John Rubin pointed out that that the act amending the statute, S.L. 2005-334, did not “address various implementation issues—for example, how the testimony will be memorialized and served.” John Rubin, Criminal Law and Procedure, North Carolina Legislation 2005, at 85 (Martha Harris, ed. 2006) (noting that the federal rules require that testimony be recorded, transcribed and certified as accurate by the issuing official; in addition, the issuing official must prepare an original warrant and the applicant must prepare a duplicate warrant for service). Whether as a result of these issues or the lack of available technology, my sense is that few, if any jurisdictions, use this procedure.

Bottom line. Police departments, in consultation with the courts in their districts, would be wise to consider whether using video-conference testimony from officers would expedite the process of obtaining a search warrant in impaired driving cases. While the Dahlquist court determined that the time required for the arresting officer to apply for the warrant in person created an exigency in that case, its commentary indicates that the court may, in a future case, factor the availability of videoconferencing technology into its totality of the circumstances analysis.

Moreover, officers shouldn’t guess at wait times when there is a practical alternative such as calling ahead.  Dahlquist strongly hints that such estimates, even when based on experience, may weigh less heavily in the State’s favor in subsequent cases.