In North Carolina, probationers, post-release supervisees, and parolees are subject to warrantless searches—sometimes by a probation-parole officer, sometimes by law enforcement officers. The statutory conditions that apply to each type of offender and officer are not identical. Today’s post collects them all in one place. Before getting into any of the complicated issues about the constitutionality of a warrantless search of a supervised offender, a sensible starting point is a careful look at the language of the search condition itself. Continue reading
Tag Archives: warrantless searches
I’m happy to announce that my book on digital evidence is now available. There are five chapters, covering (1) search warrants for digital devices, (2) warrantless searches of digital devices, (3) law enforcement access to electronic communications, (4) tracking devices, and (5) the admissibility of electronic evidence. Continue reading →
The court of appeals recently expanded the community caretaking exception to the warrant requirement, entering a national controversy over the proper scope of the doctrine. This post explains the exception and the disagreement about its proper application.
Background: United States Supreme Court. The doctrine was first recognized by the United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433 (1973). In Dombrowski, the defendant was driving while impaired and wrecked his vehicle. Officers impounded and then searched the defendant’s car, finding evidence that linked the defendant to a murder. The defendant argued that the warrantless seizure and search of his car violated the Fourth Amendment, but the Court disagreed, finding that no warrant was necessary:
Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.
The Court ruled that the decision to impound the vehicle was a reasonable safety precaution given the defendant’s inability to make arrangements for it, and that searching the vehicle to make sure that no weapons were in it was a reasonable departmental policy.
Background: North Carolina. Following Dombrowski, the North Carolina appellate courts adopted the community caretaking doctrine with regard to the impoundment of abandoned or disabled vehicles. See, e.g., State v. Phifer, 297 N.C. 216 (1979).
Smathers. In State v. Smathers, __ N.C. App. __, 753 S.E.2d 380 (2014), the court of appeals expanded the scope of the community caretaking doctrine. The defendant in Smathers was driving lawfully on a highway when an officer who happened to be nearby saw the defendant strike a large animal that had run into the road, “causing her vehicle to bounce and produce sparks as it scraped the road. [The officer] pulled his police cruiser behind [the] defendant, who had decreased her speed to about 35 miles per hour, and activated his blue lights. He testified that . . . he stopped defendant to ensure that she and the vehicle were ‘okay.’”
As it turned out, the defendant was impaired, and was arrested for DWI. She argued that the stop was unlawful, but both the trial judge and the court of appeals disagreed. The court of appeals “formally recognize[d]” the community caretaking doctrine outside the abandoned vehicle context, and ruled that the stop was justified under the doctrine. As formulated by the court of appeals, the doctrine applies if there is a “reasonable need” for community caretaking, and the public need for caretaking outweighs the intrusion on individual privacy. Factors to be considered in the balancing test include:
(1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.
The court also stated that the officer’s subjective intentions are irrelevant. So long as the balancing test is satisfied, the fact that an officer may also have wanted to investigate possible criminal activity does not render the search or seizure improper. Finally, the court stated that the community caretaking doctrine should be “applied narrowly.” However, it ruled that in this case, the officer’s concern for the defendant’s safety justified the stop, especially given that the collision took place at nighttime in a remote area and involved a large animal.
Unanswered questions and the national controversy. Smathers expands the scope of the community caretaking doctrine, but the balancing test sounds rather elastic and the opinion doesn’t define the outer limits of the doctrine. Consider the following questions:
- Can the doctrine apply outside the vehicle context – for example, when an officer enters a home to do a safety check on an elderly resident? Courts elsewhere are split, but the fact that the involvement of a motor vehicle is only one factor in the court of appeals’ balancing test suggests that in North Carolina, perhaps it can.
- How severe the safety threat must be for the doctrine to apply? May an officer stop a motorist who is driving aimlessly and may be lost? One who has pulled over lawfully and is talking on a mobile phone? One who has a tire that appears to be mildly underinflated? Again, courts across the country disagree.
- How does the scope of the community caretaking exception compare to the emergency doctrine, discussed in this blog post and codified in G.S. 15A-285?
These questions will eventually be answered by further cases. In the meantime, those interested in further reading may review the discussion of community caretaking in Bob Farb’s book, Arrest, Search, and Investigation in North Carolina, or in Professor LaFave’s search and seizure treatise. A slightly more casual and less dense alternative is this ABA Journal article, which does a nice job of summarizing the disarray in this area of the law.
The United States Supreme Court decided Missouri v McNeely yesterday, holding that in impaired driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. The high court thus resolved the split among state courts regarding whether its 47-year-old decision in Schmerber v. California, 384 U.S. 757 (1966), required facts in addition to the natural dissipation of alcohol to establish an emergency sufficient to trigger the exigent circumstances exception to the warrant requirement – it does – and rejected the State’s call for a categorical rule authorizing warrantless blood draws whenever an officer has probable cause to believe a person has been driving while impaired based solely on the evanescent nature of alcohol.
Facts. The defendant in McNeely was stopped for speeding. The officer noticed signs that the defendant was impaired by alcohol, and the defendant admitted to having consumed a couple of beers at a bar. After the defendant performed poorly on field sobriety tests, he was arrested.
On the way to the police station, the defendant told the officer he would not provide a breath sample. The officer then drove to the hospital to obtain a sample of the defendant’s blood for analysis. Upon arriving at the hospital, the officer asked the defendant whether he would consent to a blood test, informing him, pursuant to Missouri’s implied consent law, that if he did not, his license would be revoked and the refusal could be used against him in a future prosecution.
The defendant refused. The officer then directed a hospital lab technician to draw the defendant’s blood. Subsequent laboratory testing measured the defendant’s blood alcohol concentration at 0.15.
The defendant was charged with DWI. He moved to suppress the breath results, arguing that taking his blood for chemical analysis without a search warrant violated the Fourth Amendment.
Lower court rulings. The trial court granted the defendant’s motion to suppress. On appeal, the Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court. The state supreme court affirmed, holding that the U.S. Supreme Court’s decision in Schmerber v. California, 384 U.S. 757 (1966), “require[s] more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.” Finding no special facts other than the dissipation of alcohol, the Missouri Supreme Court held that the nonconsensual warrantless blood draw violated the defendant’s Fourth Amendment rights.
Supreme court ruling. The Supreme Court granted certiorari to resolve a split of authority on the question of whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations. The high court, in an opinion authored by Justice Sotomayor, affirmed the judgment of the Missouri Supreme Court that it does not. The court held that:
- Warrantless searches carried out pursuant to the exigency exception comport with the Fourth Amendment’s reasonableness requirement because there is a compelling need for official action and no time to secure a warrant. Because the police action in such circumstances lacks the traditional justification that a warrant provides, courts must look to the totality of the circumstances to determine whether an emergency existed. The exigency exception thus differs from the categorical exceptions that apply to searches of automobiles and searches of persons incident to arrest, which do not require the courts to assess whether the policy justifications underlying the exception are satisfied.
- While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.
- In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.
- Some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test.
- Exigent circumstances may exist when there is no accident. The procedures for obtaining a warrant and the availability of a magistrate may affect whether there is time to obtain a warrant and thus may establish an exigency.
Concurrence and dissent.
- Justice Kennedy concurred in part and wrote separately to note that states may wish to adopt rules and guidelines giving practical instruction to officers. He further observed that the Court might find it appropriate to consider a case in which it could provide more practical guidance about when an exigency exists.
- Chief Justice Roberts, joined by Justices Bryer and Alito, concurred in part and dissented in part. The Chief Justice agreed with the majority that exigencies are to be determined based on a totality of the circumstances, but argued that because the circumstances in impaired driving cases are often typical, the court should offer more guidance for the police. The Chief Justice argued for the following rule: If an officer investigating an impaired driving case reasonably concludes that there is not sufficient time to seek and receive a warrant or the officer applies for a warrant but does not receive a response before blood can be drawn, a warrantless blood draw may ensue.
- Justice Thomas dissented, arguing that the dissipation of alcohol, without more, constitutes exigent circumstances as it destroys evidence of a crime.
Impact for NC. The North Carolina court of appeals in State v. Fletcher, 202 N.C. App. 107 (2010), employed the totality of the circumstances analysis approved in McNeely in considering whether exigent circumstances existed to support the nonconsensual, warrantless withdrawal of the defendant’s blood in an impaired driving case. Fletcher considered not only the dissipation of alcohol, but also the distance to the magistrate’s office and the time required to obtain a warrant on a Saturday night. Fletcher concluded that an exigency existed based on a potential delay of two to three hours. Because the Supreme Court in McNeely rejected only the per se rule advocated by the State and did not define what length of delay would constitute an exigency, McNeely sheds no light on whether a delay of the sort in Fletcher is a “significant” delay that “negatively affect[s] the probative value of the results.” (Slip op. at 9.)
Fletcher also upheld as constitutional G.S. 20-139.1(d1), which states: “If a person refuses to submit to any test or tests pursuant to this section, any law enforcement officer with probable cause may, without a court order, compel the person to provide blood or urine samples for analysis if the officer reasonably believes that the delay necessary to obtain a court order, under the circumstances, would result in the dissipation of the percentage of alcohol in the person’s blood or urine.” The court held that the statute required “both probable cause and an officer’s reasonable belief that a delay in testing would result in dissipation of the person’s blood alcohol content,” noting that “[i]n effect, our legislature has codified what constitutes exigent circumstances with respect to DWI’s.” 202 N.C. App. at 98.
Given that Fletcher itself required more than dissipation to support an exigency, perhaps G.S. 20-139.1(d1), as interpreted in Fletcher, and because of its “under the circumstances” clause is constitutional. On the other hand, if the statute is read to authorize warrantless blood draws based on the dissipation of alcohol alone, it clearly violates the standard announced in McNeely.
The court of appeals just decided a case that’s important for officers, as well as lawyers and judges, to know about. The case is State v. Pasour, and it began when officers received a call “that a subject living at [a specific address] had marijuana plants growing with his tomato plants.” The officers decided to do a knock-and-talk at the residence. They knocked on the front and side doors and got no response. Pursuant to what they described as a “standard procedure,” they then went around to the backyard, heading for the back door. There was no path or other indication that visitors regularly used the back door, and in fact there was a “no trespassing” sign in the side yard, though the officers apparently did not notice it. As they entered the backyard, the officers saw marijuana plants in plain view. They seized the plants, and charged the defendant with drug offenses.
The defendant moved to suppress, arguing that the officers exceeded the bounds of a permissible knock-and-talk when they went around to the backyard. The trial court denied the motion, and the defendant pled guilty and appealed. The court of appeals reversed. It found that “the determinative issue is whether or not the homeowner had a reasonable expectation of privacy in the area of curtilage the officers entered when they first viewed the contraband,” and it ruled that the defendant did have such an expectation.
Finding no in-state authority on point, the court contrasted two Fourth Circuit cases: Alvarez v. Montgomery County, 147 F.3d 354 (4th Cir. 1998), where the court stated that “[t]he Fourth Amendment does not prohibit police, attempting to speak with a homeowner, from entering the backyard when circumstances indicate they might find him there,” and Pena v. Porter, 316 Fed. Appx. 303 (4th Cir. 2009), in which the court ruled that if there is no reason to believe that a resident is in the backyard or that a knock at the back door will produce a different result from a knock at the front, entering the backyard is generally improper. The court of appeals found the case at bar more similar to Pena than to Alvarez, noting that there was no indication that the defendant would be found in the backyard. Furthermore, the court said, “while not dispositive, a homeowner’s intent to keep others out and thus evidence of his or her expectation of privacy in an area may be demonstrated by the presence of ‘no trespassing’ signs.” Accordingly, it ruled that the defendant had a reasonable expectation of privacy in the backyard, and that the officers’ entry was unreasonable.
There are quite a few out-of-state cases in this area, and many of them support going to the back door under at least some circumstances. In addition to Alvarez, see Hardesty v. Hamburg Township, 461 F.3d 646 (6th Cir. 2006) (“[W]here knocking at the front door is unsuccessful in spite of indications that someone is in or around the house, an officer may take reasonable steps to speak with the person being sought out even where such steps require an intrusion into the curtilage.”), and United States v. Garcia, 997 F.2d 1273 (9th Cir. 1993) (finding a backyard is not protected where there is no reasonable expectation of privacy because the back of the house is used as the principal entrance of the dwelling). See also generally 1 Wayne R. LaFave, Search and Seizure 601 n. 215 (4th ed. 2004) (collecting cases)
I have to admit that some of these decisions puzzle me. I have always understood the curtilage to be an extension of the home, accessible to officers only with a warrant or under an exception to the warrant requirement. Officers can go to the front door for a knock-and-talk even though the front door is within the curtilage because homeowners expect, indeed implicitly invite, visitors of all kinds to the front door. So the consent exception to the warrant requirement applies to officers approaching the front door. But if there’s no path around back that amounts to an implicit invitation for visitors to follow it, I don’t know of a warrant exception that would allow officers to enter the backyard. Alvarez and Hardesty say that entering the backyard to access the back door is permissible if a person may be in the house, but whether the house is occupied doesn’t strike me as particularly relevant. If the crucial issue is, as the Pasour court put it, “whether or not the homeowner had a reasonable expectation of privacy in the area,” whether the occupant happens to be home at a particular moment doesn’t factor into that equation. And if there were some kind of diminished expectation of privacy based on occupancy, it would seem that the officers could then skip the backyard altogether and proceed directly into the home itself!
To be clear, Pasour itself doesn’t say that the backyard is generally off limits. The facts before the court didn’t establish that anyone was inside the house, much less in the backyard, so the court didn’t need to address whether such circumstances would support going around back. As noted above, many out-of-state cases have held that they would, so if I were advising officers, I would advise that going around back is probably permissible if there appears to be someone in the home or in the backyard, unless the backyard is exceptionally secure from intruders, such as by a high fence with a locked gate. If others read Pasour or the out-of-state cases in this area differently, please weigh in.
A couple of recent cases got me thinking about the authority of the police to enter a home without a warrant when there is an emergency.
First, the legal background. Generally, a warrant is required to enter a home without the consent of the occupants. Yet “a warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting, or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal.” Wayne v. United States, 318 F.2d 205 (D.C. Cir. 1963). In the more clinical words of the Supreme Court, “police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” Brigham City v. Stuart, 547 U.S. 398 (2006). The subjective motivations and intentions of the officers – that is, whether they are actually motivated by a desire to protect an occupant of the home or by a desire to gather evidence – are irrelevant. Id. For a general discussion of the emergency doctrine, see Wayne R. LaFave, Search and Seizure §6.6(a)-(b) (4th ed. 2004). North Carolina has codified the doctrine by statute. G.S. 15A-285 (allowing an officer to enter a building when he or she “reasonably believes that doing so is urgently necessary to save life, prevent serious bodily harm, or avert or control public catastrophe.”).
An issue that frequently arises in cases involving the emergency doctrine is what counts as an “objectively reasonable basis for believing that an occupant is” injured or endangered? The recent cases that got me started thinking about this doctrine shed some light on this issue.
In State v. Cline, __ N.C. App. __ (2010), a toddler was found wandering near a highway. A motorist collected the child and called the police, who began looking for the child’s parents in a nearby neighborhood. A resident told them that the child was likely the defendant’s son. An officer knocked on the front door of the defendant’s residence several times and got no answer. The back door was ajar, and a diaper was lying nearby. The officer was concerned that the child’s parent could be dead or otherwise in need of assistance, so he entered the residence, finding marijuana growing in the bathtub in plain view. The defendant was charged with drug offenses and moved to suppress, but the trial court denied the motion and the court of appeals affirmed, finding that the officer’s entry was supported by his uncertainty about whether the defendant’s father was dead or injured.
In Johnson v. Memphis, __ F.3d __, 2010 WL 3305264 (6th Cir. Aug. 24, 2010), a 911 operator received a hang-up call. The operator called back and received no answer, and police were dispatched to the residence from which the call originated. They found the front door wide open, and received no response when they announced their presence. They entered “to make sure that no one was hurt or in need of assistance,” encountered an aggressive occupant, and shot him. The occupant’s widow sued, claiming, inter alia, that the officers’ entry violated the Fourth Amendment. Both the trial court and the reviewing court disagreed, with the latter holding that “the combination of the 911 hang[-up] call, an unanswered return call, and an open door with no response from within the residence is sufficient to satisfy . . . the emergency aid exception.” The unanswered return call, in particular, suggested that “after the initial call was placed the caller or the phone has somehow been incapacitated.”
I don’t know whether, in theory, an “objectively reasonable basis for believing” means probable cause, or reasonable suspicion, or something else. (Brigham City v. Stuart dodges this issue in a pretty conspicuous manner.) But I’m confident that, in practice, courts are likely to defer to officers’ decisions about when an emergency entry is justified. As the Wayne court explained, “the business of policemen . . . is to act, not to [engage in] . . . the calm deliberation associated with the judicial process.”
I’ve bumped into a couple recent cases in which law enforcement officers have requested consent to search a car and have received ambiguous responses. (For a discussion of when officers may ask for consent to search during a traffic stop, see this prior post and the linked document.) I thought I’d share the cases and a couple general points in this area. Thanks to my colleague Shea Denning for pointing me to the first case, and hat tip to Orin Kerr at the Volokh Conspiracy for flagging the other.
1.United States v. Pena, 2010 WL 93861 (E.D.N.C. Jan. 8, 2010) (slip op.). A Roanoke Rapids officer stopped the defendant’s car on I-95 for a window tint violation. The defendant didn’t have a valid driver’s license, and he and his passenger gave inconsistent answers about their destination, their relationship, and other matters. The officer nonetheless issued the defendant a citation and said “that’s that.” Then the officer asked “if [the defendant] minded if [the officer] searched the vehicle. [The defendant] said, ‘Sure,'” which the defendant later agreed meant sure, the officer could search, not sure, the defendant minded. The defendant then said he was in a rush, and the officer indicated he would search quickly. He asked the defendant to sign a written consent, but the defendant refused, saying that the car belonged to the passenger. The officer then searched the car based on the oral consent, finding evidence of identity theft and related crimes. (I’m omitting some facts that aren’t critical, including some facts suggesting that the defendant effectively revoked his consent, but only after the officer had already found drug residue in the car, justifying a continued search even without consent.) The defendant moved to suppress, arguing, inter alia, that “although he first responded ‘sure’ when asked if [the officer] could search, the later statement that he could not sign the written consent because it was not his car shows that his real intent was to deny the request to search.” The court found that the case was a “close call,” but denied the motion, finding that the oral consent was unambiguous while the refusal to sign the written form was equivocal, especially in light of the defendant’s failure to object immediately when the officer began searching.
2. Meekins v. State, __ S.W.3d __, 2009 WL 4876866 (Tex. Ct. App. Amarillo Dec. 17, 2009). An officer stopped the defendant’s car for turning without signaling. For reasons that aren’t relevant to this post, the officer suspected that the defendant might be involved in drug activity. The officer asked the defendant, six times, to consent to a search of the car. “The officer asked that many times because appellant would not commit one way or the other. Indeed, captured on the video of the event was the officer informing [the defendant] that he was being asked a ‘yes or no’ question. . . . [T]he last request propounded to [the defendant] consisted of [the officer] asking: ‘Do you mind if I look?’ To it, [the defendant] answered ‘yes,’ according to the officer.” Id. As a result, the officer ordered the defendant out of the car. This eventually resulted in a search of the defendant’s person, which turned up drugs. The defendant moved to suppress, arguing that he hadn’t consented to the vehicle search and that the search of his person was the fruit of that poisonous tree. He lost, pled guilty, and appealed. The appellate court reversed. It held that “the State must prove by clear and convincing evidence that the consent was freely and voluntarily given,” and that it was “positive and unequivocal.” The court found no such unequivocal consent, in light of “the nature of the question to which [the defendant] said ‘yes.'” Specifically, “The officer had not asked ‘may I search’ but rather ‘would you mind if I look?’ Answering ‘yes’ to the latter meant that [the defendant] did mind,” i.e., that he did not consent. The court was also concerned about the defendant’s “prior evasiveness in response to the officer’s persistence in asking for consent. When combined, the circumstances paint not a picture of clarity or unequivocation but rather one of vacillation and hesitance.”
A couple of general points come out of these cases.
- “There must be a clear and unequivocal consent” to authorize a consent search. State v. Pearson, 348 N.C. 272 (1988). Unlike the Miranda context, where the rule is that an ambiguous assertion of a suspect’s right to counsel does not require an officer to stop the interrogation, ambiguity with respect to consent weighs against the state. Therefore, officers should be careful to obtain a clear expression of consent.
- Officers should try to avoid asking for consent using phrases like “do you mind if I search?” The meaning of an affirmative response to such inquiries is unclear, as the cases above illustrate. If an officer does employ such a phrase, he or she should clarify the meaning of any response.
- In-car video recorders protect officers from complaints of misconduct and serve other salutary purposes. But they also enable close analysis of the exact words used in interactions between officers and suspects. As such recorders march toward ubiquity, the importance of officers expressing themselves precisely will only increase.
I’ve blogged before about G.S. 20-139.1(d1). When a DWI arrestee refuses to submit to a test for alcohol, that section allows “any law enforcement officer with probable cause” to “compel the [arrestee, without a search warrant] to provide blood or urine samples for analysis if the officer reasonably believes that the delay necessary to obtain a court order . . . would result in the dissipation” of alcohol in the arrestee’s system.”
I argued in my prior post that in a routine refusal case, an officer should get a search warrant rather than rely on G.S. 20-139.1(d1), which should be used only when circumstances suggest that obtaining a warrant would be unusually time-consuming. Yesterday, the court of appeals decided State v. Fletcher, which confirms my basic point, but also suggests that the courts are willing to allow warrantless blood draws under circumstances that really aren’t that unusual.
The defendant in Fletcher stopped at a checkpoint and exhibited several signs of impairment. He was arrested and taken to an Intoximeter. Compressing the facts a bit, he refused to provide a sample, and the arresting officer took him to the emergency room for a warrantless blood draw, the results of which confirmed his impairment. He moved to suppress the results, arguing that there was nothing unusual about the case that justified a warrantless blood draw, but the trial court denied his motion and the court of appeals affirmed.
The appellate court noted that G.S. 20-139.1(b1) is essentially a statutory codification of the exigent circumstances exception to the search warrant requirement, as applied in the context of blood draws. And it found sufficient exigency in the following facts: (1) the magistrate’s office was 12 miles away; (2) it was often very busy on weekend evenings, meaning that a search warrant application might not be considered immediately; (3) and the emergency room was likewise often very busy on weekend evenings. The officer estimated the total delay associated with going to the magistrate’s office, procuring a warrant, and executing it to be two to three hours. It looks like the trial prosecutor did an excellent job of presenting evidence supporting each aspect of the delay.
Two things stand out about Fletcher. First, the facts here are not extremely unusual. At least for officers who regularly use Intoximeters that aren’t adjacent to a magistrate’s office, all three of the factors present in Fletcher will often be present. So although obtaining a warrant when possible remains advisable, it appears that the court has adopted an expansive view of exigent circumstances in this context. Second, the court specifically rejected the idea that the admissibility of retrograde extrapolation testimony undercuts the exigency, an argument I considered in my earlier post. All in all, it’s an important case, and one that most officers will like.