Mitchell v. Wisconsin — Warrantless Blood Draws from Unconscious Suspects.
Posted by Edmund R. Folsom, Esq.
July 9, 2019
In Mitchell v. Wisconsin, decided June 27, 2019, the U.S. Supreme Court announced:
“When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment. “
WHAT WAS THE LEGAL ISSUE?
Police arrested Gerald Mitchell for OUI after they found him stumbling around near a lake in Sheboygan, Wisconsin. They were looking for him because they received a report that he had gotten into his van and had driven while apparently intoxicated. Police gave him a preliminary breath test that yielded a 0.24% BAC result. At that point, they arrested him for driving while intoxicated and took him to a police station to breath-test him on the equipment there. Once police reached the station with Mitchell, they determined he was too lethargic to take a breath test, so they took him to a hospital for a blood test. On the way, Mitchell fell asleep. At the hospital, police read the passed-out Mitchell Wisconsin’s “implied consent” warnings, informing him of his duty to submit to a test and of the consequences of not submitting.
Because Mitchell remained unconscious, police simply had hospital staff take a sample of his blood, pursuant to a Wisconsin statute that allowed the practice. They made no effort to get a search warrant. The result of that test was a 0.222% blood-alcohol level. Mitchell moved to suppress the results because his blood was taken without a warrant. He did not challenge probable cause for his arrest. The State of Wisconsin argued that, as a driver of a motor vehicle, Mitchell had “impliedly consented” to submit to a test and his consent remained valid because he did not affirmatively withdraw it while he was unconscious. The Wisconsin courts determined that police did not violate the Fourth Amendment by taking Mitchell’s blood without a warrant. The case eventually ended up in the United States Supreme Court, which took the case to decide “whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment Warrant requirement.”
WHAT WAS THE LEGAL BACKGROUND?
Previously, in Birchfield v. North Dakota, the U.S. Supreme Court decided that police need a search warrant to take a person’s blood sample in a drunk driving case. There are two possible search warrant exceptions that might justify police taking blood without a warrant to use in a criminal investigation — the exigent circumstances exception and the consent exception. The Supreme Court refused to rule on Wisconsin’s theory that Mitchell “impliedly consented” to the blood test and did not withdraw consent. Instead, the Court decided the case under the exigent circumstances exception to the search warrant requirement.
Before the Supreme Court decided Birchfield, it decided Missouri v. McNeely. In McNeely, the Court declared that the bare fact that alcohol in a person’s blood is constantly dissipated by bodily processes does not create an automatic exigent circumstance in every drunk driving case that justifies taking a person’s blood without a search warrant.
WHAT DID THE SUPREME COURT DO IN MITCHELL?
In Mitchell, a plurality of four Supreme Court declared:
“[E]xigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious … In such a case … an officer could reasonably have believed that he was confronted with an emergency.”
Instead of simply deciding whether exigent circumstances existed on the particular facts of Mitchell, the Mitchell plurality created a categorical rule for all cases involving unconscious OUI suspects. In effect, they declared that unconscious suspects or arrestees so commonly place special demands on the attention of police that exigent circumstances are presumed in all drunk driving cases involving an unconscious suspect. After creating this new presumption, the Court remanded the case for further findings of fact at the trial court level. The plurality stated, “We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.” Mitchell did not have an opportunity to make these showings in the first place, so the case was remanded to give him that chance. A fifth Supreme Court Justice (Thomas) concurred with the plurality, but wrote to express his opinion that McNeely was wrongly decided and that the natural dissipation of blood-alcohol by bodily processes alone creates an exigency in all OUI cases.
WHAT DO THE PLURALITY’S NEW MITCHELL RULES MEAN IN THE REAL WORLD?
What does this mean? I have a hard time understanding the reason for the part of the plurality’s test that requires Mitchell to show that his blood would not have been taken if the police were not seeking evidence of his BAC. The other part of the test is easy to understand. It deals directly with whether exigent circumstances might not in fact have existed, despite the Court’s newly-minted presumption that they did. If Mitchell can show that, on his particular case facts, police could not reasonably have judged that seeking a warrant would interfere with other pressing needs or duties, that would likely defeat a finding of exigency (although there still might have been an exigency if police reasonably judged that the time it would take to secure a warrant, even absent interference with other pressing needs, would result in significant further dissipation of alcohol).
As the dissent points out, though, under the plurality’s new rule, Mitchell would also need to show that his blood sample would not have been taken but for the police effort to secure evidence of his BAC. Therefore, under this new rule, it would not be enough for Mitchell to show that a police officer acting reasonably would easily have had time to secure a warrant without interfering with other pressing demands or duties. Prior to Mitchell, that would have been enough to demonstrate that exigent circumstances were not present. And even under Mitchell’s newly-created, categorical presumption for this type of case, it should be enough to defeat a finding that exigent circumstances in fact existed in the particular case. But, for some reason, the plurality also requires a defendant in this category of cases to show that the blood sample was only taken for a police investigation and would not have been taken for medical purposes. Why?
In footnote 8, the plurality explains its theory that it is less intrusive for a person to have blood taken at a hospital for medical purposes, with a portion used by police for their investigation, than to have police secure a search warrant and take a second, separate sample afterward. In other words, the plurality paints a picture in which requiring a search warrant would result in a person’s skin being pierced a second time for law enforcement, versus a less intrusive a warrantless process that involves only a single needle stick for dual purposes. Maybe, the plurality views a warrantless blood sample taken by hospital personnel as falling under the inevitable discovery exception to the search warrant requirement. In other words, if the hospital was going to take the sample anyway, but took it when they did because law enforcement requested it, the taking of the sample is a Fourth Amendment search and seizure, because police ordered it to occur. But because the hospital would have taken the sample anyway, it is inevitable that it would have been available for the police to access for their own purposes (setting aside that the police acquisition of the sample from the hospital would seem to be a separate search that would require a search warrant or the presence of a recognized exception to the search warrant requirement).
I don’t know whether inevitable discovery is actually the theory the plurality had in mind in formulating their new test, because they did not elaborate. But given that it is not enough for Mitchell to show only that there were no exigent circumstances, the plurality must have in mind some reason consistent with its pre-existing Fourth Amendment jurisprudence why this is so. Does the inevitable discovery doctrine explain why the Court would not apply the exclusionary rule even if the warrantless search for Mitchell’s blood did not fit the exigent circumstances exception?
If the sample taken by the hospital was taken with a forensic kit, supplied by police and designed specifically to be used by police to gather evidence of BAC, it appears Mitchell will be able to satisfy part one of the plurality’s new test and will prevail if he can also demonstrate the absence of exigency. That’s because a sample taken by the hospital with a forensic kit is a sample that would not have been taken for medical purposes. Police secure blood samples with forensic kits for themselves, then they control the chain of custody and provide the sample to a forensic lab for analysis. Such samples are not taken for medical purposes. On the other hand, if the sample was taken using the hospital’s own equipment and police used a portion for forensic analysis, Mitchell probably won’t be able to demonstrate that the sample was only taken for police evidentiary purposes.
Usually, when medical personnel take a blood sample with hospital equipment, they take it for their own purposes. They might hold what remains of their sample, at the request of police, until police secure a search warrant for it. But it is also quite possible that a hospital drawing blood for police, using hospital equipment, might provide police with a vial and secure a second vial for their own purposes. If that happens, would the plurality find that the blood in the first vial was taken only for the police, because the hospital would not have taken that vial for medical purposes? If so, is the blood in the first vial suppressible as long as the defendant can show that police could not reasonably have judged that a warrant application would interfere with other pressing needs or duties? Would the plurality nevertheless allow police to seize a portion of the second vial without a warrant because the blood in that vial was taken for medical purposes? How exactly is this going to work in the real world?
Again, why did the plurality add to its newly-minted presumption of exigency a rule that the defendant cannot prevail on a motion to suppress the fruits of the warrantless search unless he can show that the blood sample was taken only for police investigative purposes? What does it have to do with exigent circumstances whether police carry out a search and seizure purely for law enforcement purposes or jointly with medical personnel for dual medical/law enforcement purposes? I am confused by this opinion. It makes me suspect the plurality have laid the groundwork for future mischief, the nature of which I cannot clearly foresee.
In any event, Mitchell gives us some brand new law in the area of warrantless OUI blood draws. First, it creates a presumption that exigent circumstances exist whenever a test subject is unconscious. In this category of cases, this effectively removes the burden on the state to prove the existence of exigent circumstances to justify the warrantless search and seizure. Second, it creates a new hurdle that a defendant must clear to defeat the presumption of exigent circumstances/usability of the evidence. The defendant must now show not only that exigent circumstances were not in fact present, but that the blood sample at issue was drawn only because police were seeking BAC information.
I guess the Court cleared that up.