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Archive for the ‘Constitutional Issues – Illegal Searches’ Category

Jun
4
Is an Involuntary Blood Draw Constitutional

A long national debate continues regarding the right of government to forcibly draw blood.  The debate centers around the government’s right to invade a person’s body in a search of evidence of the commission of a crime.  Obviously, constitutionalists say that the forcible invasion of a person’s body is per se unconstitutional.  On the other side is law enforcement that argues such an intrusion in the name of crime prevention is minimally invasive and, therefore, not a violation of the right to be free from illegal searches and seizures.

 
A recent of Ohio case demonstrates a further swing toward law enforcement.  The case, State v. Capehart, 2011 Ohio 2602, involved the arrest of an individual subsequent to a tractor accident.  The officer who came to assist observed a number of characteristics of alcohol impairment – glassy eyes, slurred speech, a smell of alcohol – along with several beer can found around the vicinity of the accident.

 
The defendant was taken to the hospital where he was read the rights set forth on the back of Form 2255 (consequences of his failure to take a chemical test).  The defendant agreed to submit to a blood test and a BAC of .31 was found.
During the subsequent prosecution of his case, the defendant filed a motion to suppress which was denied by the court stating the defendant had volunteered to take the test and, therefore, it was not an illegal search and seizure.

 
But, the court did not stop there.  Uncharacteristically, the court went on in its opinion to render its opinion regarding a scenario wherein a defendant had not volunteered to take a blood test.  The court, in analyzing such a scenario stated:
“…certain situations, such as where there is imminent danger that evidence will be lost or destroyed if a search is not conducted immediately, “present exigent circumstances that justify a warrantless search.” State v. Moore, 90 Ohio St.3d 47, 52, 2000 Ohio 10, 734 N.E.2d 804; State v. Christopher, Clermont App. No. CA2009-08-041, 2010 Ohio 1816, ¶32.  The United States Supreme Court in Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L. Ed. 2d 908, determined that a warrantless seizure of a blood sample for purposes of testing an individual’s alcohol level could be justified based on exigent circumstances resulting from the evanescent nature of the evidence, i.e., the fact that the level of alcohol in blood dissipates over time. In so holding, the Supreme Court set forth certain criteria to be used in determining if such an intrusion violates the Fourth Amendment: (1) the government must have a “clear indication” that incriminating evidence will be found; (2) there must be a search warrant or exigent circumstances, such as the imminent destruction of evidence, to excuse the warrant requirement; and (3) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner. Id. at 770-772; Christopher at ¶32; State v. Troyer, Wayne App. No. 02-CA-0022, 2003 Ohio 536, ¶14. In a recent case similar to the one before us, this court had occasion to consider a warrantless seizure of a blood sample and found it to be justified under Schmerber. State v. Palmieri, Butler App. No. CA2009-12-294, 2010 Ohio 5667.”

 
“In the present case, based on appellant’s bloodshot eyes, slurred speech, odor of alcoholic beverage on his person, beer cans nearby, and statements admitting to the consumption of beer, the officer had probable cause to believe appellant  had been driving under the influence of alcohol, and therefore, there existed a clear indication that a blood-alcohol test would reveal incriminating evidence. See State v. Woods (Sept. 9, 1991), Butler App. No. CA90-07-125, 6-9, 1991 Ohio App. LEXIS 4210; see, also, State v. Hessel, Warren App. No. CA2009-03-031, 2009 Ohio 4935, ¶23; State v. Henry, Preble App. No. CA2008-05-008, 2009 Ohio 10, ¶44-45; State v. Hill, Coshocton App. No. 2008-CA-0011, 2009 Ohio 2468, ¶21.”

 
“Furthermore, exigent circumstances justified the warrantless search. See Woods at 11, 1991 Ohio App. LEXIS 4210; Troyer at ¶27-28. These include the rapid rate at which alcohol diminishes in the blood and the time that had already passed since appellant drove his tractor into the ditch. Such circumstances indicate there was an imminent danger that the evidence would be lost if the blood sample was not drawn immediately.”

 
“Finally, because the blood sample was drawn by trained medical personnel using medically acceptable procedures, it is clear that the method used to extract the evidence was reasonable and performed in a reasonable manner. Cf. State v. Starnes (1970), 21 Ohio St.2d 38, 43, 254 N.E.2d 675 (finding the Supreme Court’s holding in Schmerber authorized the administration, over the objection of the accused, of the tests specified in R.C. 4511.191).”

 
In conclusion, the court said, “…we find the warrantless search and seizure of appellant’s blood for purposes of testing his alcohol level did not violate appellant’s Fourth Amendment rights and was justified regardless of consent under the principles outlined by the Supreme Court in Schmerber.”

 
So, will this case embolden law enforcement to order blood draws when a defendant is taken to the hospital?  Will law enforcement transport a defendant to a hospital and order hospital personnel to strap that person down and forcibly take a blood draw?  One can only hope that reasonable minds will prevail.  But, only time will tell!

Posted in Constitutional Issues - Illegal Searches, Evidence/Trial Practice, Issues on Appeal | No Comments »

Feb
4
The Constitutionality of Mandated Blood Draws
One of the more controversial aspects of the amendments made to Ohio OVI laws is the provision giving the police the right to use “reasonable means” to ensure the suspect’s submission to mandatory blood draw as set forth in. R.C. 4511.191(A)(5)(b).  While most police departments are loathe to use force on any suspect to impose a mandatory blood draws, the controversy continues.  The issue to most legal scholars pertains to the constitutionality of such provisions.
The Ninth District Court of Appeals (Summit County) has weighed in with a comprehensive review of these provisions.  The case, State v. Slates, 2011 Ohio 295, involved a blood draw pursuant to an OVI arrest.
The court started with a restatement of the law, “R.C. 4511.191(A)(5)(b) authorizes the police to employ whatever reasonable means are necessary to ensure that a person suspected of operating under the influence, and who would be required to be sentenced as repeat offender, submit to a blood alcohol test.”
Having restated the law, the court’s analysis ensued by defining the boundaries of a persons right against illegal searches an seizures.  Per the court’s synopsis, “The Fourth Amendment to the United States Constitution provides in part that the right of the people to be secure in their persons against unreasonable searches and seizures, shall not be violated. The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of reasonableness upon the exercise of discretion by government officials, including law enforcement agents, in order to safeguard the privacy and security of individuals against arbitrary invasions. Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against the promotion of legitimate governmental interests.”
What intrusions are permitted?  “The Fourth Amendment does not constrain against all intrusions but, rather, only those intrusions which are not justified by the circumstances or which are executed in an improper manner. Three criteria have been set forth to determine the reasonableness of an intrusive search: (1) the government must have a clear indication, rather than a mere chance, that incriminating evidence will be found; (2) there must be a search warrant or exigent circumstances, such as the imminent destruction of evidence; and (3) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner.”
Having established the criteria, the court went on to an analysis of the facts in this case and its application.  Regarding the first prong, the stated, “The first prong may be satisfied where the State has established probable cause for the arrest.”  Since there was uncontroverted evidence of probable cause for the arrest, the court was satisfied that the first requirement was fulfilled.
Regarding the second prong, the court said, “After the suspect’s refusal to submit to the chemical test, the suspect must necessarily be transported to a location where a physician, registered nurse, or other enumerated qualified professional is available to draw the blood. Accordingly, the police will never have the entire three-hour period in which to obtain a warrant. Moreover, depending on the time of the alleged violation, there most likely would not be enough time to secure a warrant to allow for the blood draw within three hours….Regarding exigent circumstances underlying the drawing of blood for purposes of chemical analysis in operating a vehicle while under the influence of alcohol cases, the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Accordingly, time is of the essence where evidence of the charged offense may diminish or be lost completely. In addition, the reasonableness of the intrusion is supported by the legitimate government interest in public safety. The legislature recognizes the inherent danger posed by repeat offenders as evidenced by the elevated offense levels and the allowance for the imposition of harsher penalties for repeated violations of R.C. 4511.19. Accordingly, the legitimate interest in protecting the public from harm bolsters the reasonable nature of a warrantless blood draw.”
Therefore, according to the Ninth Appellate District, mandatory blood draws for multiple offenders in constitutional.  But, as this writer has observed, the controversy regarding these provision are merely an academic debate as most, if not all, police departments refuse to enforce these provisions.

Posted in Constitutional Issues - Illegal Searches, Issues on Appeal, Refusal to Take a Test | No Comments »

Feb
3
Under What Circumstances Can a Driver Be Required to Exit Their Automobile
For those who follow my blog, they are familiar with the term “Probable Cause.”  This is the term used by most legal scholars to identify the totality of evidence necessary to take certain actions relating to a criminal act.  In prior blogs I’ve described the evidence necessary to have probable cause to stop a vehicle and the probable cause necessary to perform field sobriety test.  One critical step has not been discussed – the evidence necessary to demand a driver exit their vehicle.
A recent 11th District Court of Appeals (Portage County) case discusses this critical step in the OVI arrest sequence.  The case, State v. Wiesenbach, 2011 Ohio 402, involved a stop where the driver had no front license plate.  The officer noticed a strong odor of alcohol emanating from the vehicle.  The officer also noticed the drivers eyes were “slightly red and glassy.”  Upon questioning, the driver did admit having an alcoholic beverage a few hours prior to the traffic stop.  The driver was placed in the rear seat of the officer’s patrol car while the officer attempted “to pinpoint the source of the alcohol odor.”  Subsequently, the officer asked the driver to exit the patrol car and field sobriety tests were performed.  Based upon the officer’s observations, the defendant was arrested for OVI.
Wiesenbach filed a Motion to Suppress, contending, among other arguments, that there was no reasonable cause to stop or detain him, that there was no probable cause to conduct an arrest for OVI, and that the field sobriety tests were not administered properly.  After a hearing on the motion, the court found that, based upon the odor of alcohol, the bloodshot, glassy eyes, the time of night, and Wiesenbach’s statements about drinking alcohol earlier, Ganley had “probable cause” to ask the Defendant to take the field sobriety tests. Additionally, the court held that officer administered the sobriety tests in substantial compliance with NHTSA standards and thus there was probable cause to arrest Wiesenbach for OVI. The court overruled Wiesenbach’s motion.
The Defendant first argued that Ganley did not have sufficient reasonable suspicion that Wiesenbach was impaired to detain him for a full OVI investigation. Wiesenbach also asserted that under State v. Evans (1998), 127 Ohio App.3d 56, 711 N.E.2d 761, he should not have been detained for a full OVI investigation because his case did not involve many of the factors to be considered to determine whether reasonable suspicion existed, listed in Evans.
In Evans, the court set forth a non-exclusive list of factors to be considered when determining whether reasonable suspicion exists to conduct field sobriety tests. This list includes the following factors:
“(1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that  the driver may be intoxicated; (5) the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect’s ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or more significantly, on the suspect’s person or breath; (8) the intensity of that odor, as described by the officer (‘very strong,’ ‘strong,’ ‘moderate,’ ‘slight,’ etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.  All these factors, together with the officer’s previous experience in dealing with drunken drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably.” Evans, 127 Ohio App.3d at 63, fn. 2.
But having verified that some of these factors existed, what level of evidence is necessary to require the driver to exit the vehicle.  The simple answer is none.  As stated by the court, “[o]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle  without violating the Fourth Amendment’s proscription of unreasonable searches and seizures[;] … it is proper for an officer to order a driver to exit a lawfully stopped vehicle, even if there was no reasonable suspicion of criminal activity.’” State v. Wojewodka, 11th Dist. No. 2009-P-0029, 2010 Ohio 973, at ¶14, citing State v. Lett, 11th Dist. No. 2008-T-0116, 2009 Ohio 2796, at ¶¶17-18, quoting Pennsylvania v. Mimms (1977), 434 U.S. 106, 111, 98 S. Ct. 330, 54 L. Ed. 2d 331. “[T]he order to step out of the vehicle is not a stop separate and distinct from the original traffic stop.” State v. Evans, 67 Ohio St.3d 405, 408, 1993-Ohio-186, 618 N.E.2d 162.  ”‘Unlike an investigatory stop, where the police officer involved must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion,” Terry [v. Ohio (1968), 392 U.S. 1,] 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889, a Mimms order does not have to be justified by any constitutional quantum of suspicion.” Lett, 2009 Ohio 2796, at ¶20, citing Evans, 67 Ohio St.3d at 408.
In other words, a driver’s Fourth Amendment rights against illegal searches and seizures are not violated once a police office finds probable cause to stop the vehicle and determines that field sobriety tests are warranted.

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Dec
8
Probable Cause to Stop – Suspended License
A recent Third Appellate District Court case further evidences Ohio courts’ continuing efforts to expand the right of police officers to stop a vehicle although the reasons for the stop may stretch the exceptions against an illegal search and seizure under the Fourth Amendment of the United States Constitution.
The case, State v. Jenkins, 2010 Ohio 5943, involved the stop of a driver by a Marysville, Ohio police officer after the officer found that the driver’s license of the driver was under suspension by way of a license check.  The defendant was driving on a Sunday at 6:18 pm.  The officer testified that the vehicle was traveling at a speed of 10 mph over the seed limit.  The defendant was not cited for speed but in checking the license plate through the LEADS database it was discovered that the owner had limited driving privileges.  The driver of the vehicle matched the general description of the owner.  The officer stopped the vehicle and discovered that the defendant was, in fact, the owner and his license was suspended,  save the limited privileges given to him.
Subsequently, the defendant filed a motion to suppress citing his fourth amendment rights against unreasonable searches and seizures.  The defendant claimed the officer had insufficient articuable facts that would warrant his top as the defendant was not cited for any underlying criminal or traffic violation.
The court, in its opinion, stated, …for a law enforcement officer to conduct a warrantless search, he must possess probable cause, which means that “‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” State v. Carlson (1995), 102 Ohio App.3d 585, 600, 657 N.E.2d 591, quoting Illinois v. Gates (1983), 462 U.S. 213, 214, 103 S. Ct. 2317, 76 L. Ed. 2d 527. However, even where probable cause is lacking, it is well-established that a law enforcement officer may temporarily detain an individual where he has a reasonable articulable suspicion that the individual is engaging in criminal activity. State v. Bobo (1988), 37 Ohio St.3d 177, 179, 524 N.E.2d 489, citing Terry, 392 U.S. at 21.”
The court went on, “Reasonable articulable suspicion is “‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.’” Stephenson, 2004 Ohio 5102, at P16, quoting Bobo, 37 Ohio St.3d at 178. In forming reasonable articulable suspicion, law enforcement officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” United States v. Arvizu (2002), 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740, quoting United States v. Cortez (1981), 449 U.S. 411, 417-418, 101 S. Ct. 690, 66 L. Ed. 2d 621. Further, an officer who witnesses a traffic violation possesses probable cause, and a reasonable articulable suspicion, to conduct a traffic stop. Id. Stephenson, 2004 Ohio 5102, at P17.”
The court cited the case of State v. Mack, 9th Dist. No. 24328, 2009 Ohio 1056 in its attempt to hone in on the specific factual jurisprudence.  That case cited two elements justifying that stop: that the drivers’ suspended license combined with the fact that the stop took place at 2:00 a.m. demonstrated the officer had a reasonable articulable suspicion for an investigatory stop of the vehicle.  In summary, “[a] police officer has a constitutionally legitimate basis to stop a vehicle when: 1) the officer learns that the registered owner of the vehicle has a suspended license with limited driving privileges; and 2) both the late hour when the driver is operating the vehicle and the location from which the vehicle is driven provide a reasonable inference that the driver may not be operating the vehicle within the scope of his limited driving privileges,” State v. Elliott, 4th Dist. No. 08CA50, 2009 Ohio 6006.
In justifying the lower court’s denial of the defendant’s motion to suppress, the appellate court came to the following conclusions in its resolution of the time differential (2:00 am v. 6:18 pm):
“…we find applicable the more general findings of Elliott concerning the relevancy of the hour during which the driver is operating his vehicle, and the location from which the vehicle is driven. Here, Officer Bartholomew testified that he observed Jenkins operating his vehicle at 6:18 p.m. on a Sunday evening; that he learned through dispatch that Jenkins’ license was suspended, but that he had limited driving privileges; that Jenkins had a passenger in his vehicle; and, that Jenkins was traveling away from his address. We find that, from the totality of these circumstances, Officer Bartholomew had a reasonable articulable suspicion that Jenkins may not have been driving within his limited privileges and was permitted to stop the vehicle to investigate further.”
This writer is having a difficult time understanding the court’s reasoning.  First the court cites the acute differences between the present case and the Elliot and Mack cases and then summarily agrees with the officer’s right to stop the defendant even though the facts are starkly different.

A recent Third Appellate District Court case further evidences Ohio courts’ continuing efforts to expand the right of police officers to stop a vehicle although the reasons for the stop may stretch the exceptions against an illegal search and seizure under the Fourth Amendment of the United States Constitution.

Posted in Constitutional Issues - General, Constitutional Issues - Illegal Searches | No Comments »

Aug
17
Arrest Required Prior to Any Chemical Test Being Ordered
A recent 5th Appellate District case addresses the issue of procedural abnormalities in the prosecution of per se violations.  In the case, State v. Whitt, 2010 Ohio 3761, the defendant was involved in a one vehicle accident.  The defendant was transported to the hospital prior to the OHP trooper arriving at the scene.  The trooper subsequently went to the hospital to interview the defendant regarding the accident.
After being read his Miranda Rights, the defendant declined to answer any questions about the accident. The trooper read and showed the defendant a copy of the Ohio Bureau of Motor Vehicles Form 2255, the so-called implied consent form. The defendant was advised that he would receive a ninety (90) day suspension of his driver’s license if the chemical test to determine the amount of alcohol in defendant’s bloodstream came back with a positive test result, but a one year suspension if he refused to submit to the test.  The reader will note, the defendant was never placed under arrest during this sequence of events.
The defendant testified that he submitted to the blood test because he was advised that he would have his license suspended for one year if he refused. The trooper then cited the defendant for OVI. The defendant file a motion to suppress for citing the following reasons:
1.  He was not arrested for ovi as required prior to requesting a chemical test. And
2.  He was advised improperly regarding the consequences of his refusal to take a chemical test.
The lower court denied his motion and the defendant appealed.
The appellate court agreed with the defendant saying, “…Ohio Bureau of Motor Vehicles Form 2255 includes the provision that an officer must read to the alleged offender a passage that specifically states that the offender is under arrest. Revised Code § 4511.191 provides: “(A) Any person who operates a vehicle upon a highway or any public or private property used by the public for vehicular travel or parking…shall be deemed to have given consent to a chemical test or tests of the person’s blood…for the purpose of determining the alcohol…content of the person’s blood…if arrested for operating a vehicle while under the influence of alcohol…or for operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine,”  State v. Kirschner, 2001 Ohio 1915.
The court went on to cite State v. Rice (1998), 717 N.E.2d 351, saying “The language of R.C. 4511.191 specifically provides that an arrest is necessary, and, throughout the additional sections accompanying this statute, reference is repeatedly made to “the person under arrest” and the “arresting officer.”
Therefore, the court concluded the defendant must be placed under arrest prior to any chemical test being requested.

A recent 5th Appellate District case addresses the issue of procedural abnormalities in the prosecution of per se violations.  In the case, State v. Whitt, 2010 Ohio 3761, the defendant was involved in a one vehicle accident.  The defendant was transported to the hospital prior to the OHP trooper arriving at the scene.  The trooper subsequently went to the hospital to interview the defendant regarding the accident.
After being read his Miranda Rights, the defendant declined to answer any questions about the accident. The trooper read and showed the defendant a copy of the Ohio Bureau of Motor Vehicles Form 2255, the so-called implied consent form. The defendant was advised that he would receive a ninety (90) day suspension of his driver’s license if the chemical test to determine the amount of alcohol in defendant’s bloodstream came back with a positive test result, but a one year suspension if he refused to submit to the test.  The reader will note, the defendant was never placed under arrest during this sequence of events.
The defendant testified that he submitted to the blood test because he was advised that he would have his license suspended for one year if he refused. The trooper then cited the defendant for OVI. The defendant file a motion to suppress for citing the following reasons:
1.  He was not arrested for ovi as required prior to requesting a chemical test. And2.  He was advised improperly regarding the consequences of his refusal to take a chemical test.
The lower court denied his motion and the defendant appealed.
The appellate court agreed with the defendant saying, “…Ohio Bureau of Motor Vehicles Form 2255 includes the provision that an officer must read to the alleged offender a passage that specifically states that the offender is under arrest. Revised Code § 4511.191 provides: “(A) Any person who operates a vehicle upon a highway or any public or private property used by the public for vehicular travel or parking…shall be deemed to have given consent to a chemical test or tests of the person’s blood…for the purpose of determining the alcohol…content of the person’s blood…if arrested for operating a vehicle while under the influence of alcohol…or for operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine,”  State v. Kirschner, 2001 Ohio 1915.
The court went on to cite State v. Rice (1998), 717 N.E.2d 351, saying “The language of R.C. 4511.191 specifically provides that an arrest is necessary, and, throughout the additional sections accompanying this statute, reference is repeatedly made to “the person under arrest” and the “arresting officer.”
Therefore, the court concluded the defendant must be placed under arrest prior to any chemical test being requested.

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