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

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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.

4 comments on “Four hour delay to obtain search warrant an exigency, at least for now

  1. What happens when a person requests an alternative such as blood test, and the officer refuses to have one taken. A person that had known health issues that could not provide a ‘sufficient sample’ to make the Breath tester function. The Officer makes a medical determination that the person was capable and refuses the alternative to secure the evidence of guilt or innocence? he simply pushes a button that prints out a document that says refused.

  2. I think it is rather ridiculous to consider an officer’s determination that the defendant is willfully refusing to blow air into a breath tube a medical determination. Your clients have the ability to seek their own test to prove innocence under 20-139.1. The current instrument used by the State (Intoximeter EC/IR II) is extremely easy to provide a sufficient sample of breath to register a reading. Studies have shown that individuals medically incapable of providing a sufficient sample have severe restrictive lung diseases and are incapable of providing up to one liter of breath. The average lung capacity is over 6 liters so your clients are either full of it or you happen to represent some of the sickest people on earth. I have never seen a defendant refuse to blow into the Intox and then request a blood test. If I ever witnessed such a thing I might actually believe the defendant is in fact trying to comply with giving a breath sample, I have just yet to see this occur.

    As far as electronic search warrants go, a lot of work needs to be done to allow for such a thing. I think Amazon drone deliveries will be available before electronic search warrants become common. Bottom line is a search warrant is the way to go and with the AOC DWI search warrant form it takes no time at all to do.

    Unfortunately though unless your District Attorney takes advantage of the $500,000 grant money from the State and strikes a deal with the local hospital to test the blood as allowed in session law 2013-194 which changes 20-139.1 for this purpose, you can forget about any issues because there will be no evidence to challenge as the SBI doesn’t have the personnel to test the blood. Just the mere words of lab and SBI brings a frown to my face.

  3. Hey,
    Let’s create the perfect plan. Let’s have the officer fill out the search warrant in the patrol car based on forms in his computer, sign it electronically, send it to the magistrate. Then the officer testifies by audiovideo transmission (Skype/Facetime) under oath/affirmation. Magistrate, if PC is found, signs it electronically and sends to the officer and clerk. Officer prints it out in his car and carries the accused to the Hospital for the blood draw!

    Now let’s spend the State’s money implementing the plan!

  4. Saved by the obiter dictum. Without it, the law in North Carolina would have essentially allowed unbridled allowance of warrantless blood draws across the state on Friday and Saturday nights.

    An exigency that existed last weekend surely shouldn’t deprive me of my constitutional rights this weekend, should it?

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