In Weddle, Maine’s Law Court Reverses Itself, Declares No PC Blood Draw Statute Unconstitutional.
Posted by Edmund R. Folsom, Esq.
February 1, 2020
The Law Court Declares Section 2522 Unconstitutional.
On Tuesday, January 28, 2020, Maine’s Law Court invalidated as unconstitutional the Maine statute that allows the warrantless taking of blood samples from drivers involved in accidents involving death or likely death. It took a lot of years for the Court to get there.
State v. Weddle, 2020 ME 12, dealt with a challenge to the constitutionality of 29-A M.R.S. §2522(2), which requires police to administer a blood test to the operator of a motor vehicle as soon as practicable after an accident if there is probable cause to believe death has occurred or will occur as a result of the accident. Section 2522 also provides:
“The result of a test is admissible at trial if the court, after reviewing all the evidence, whether gathered prior to, during or after the test, is satisfied that probable cause exists, independent of the test result, to believe that the operator was under the influence of intoxicants at the time of the accident.”
The upshot of this statute is that it requires police to take a blood sample from a driver in an accident where there is probable cause to believe death has occurred or will occur, regardless whether the police have probable cause to believe the person was operating under the influence. The results of a blood analysis are then admissible against the person in court as long as probable cause can be cobbled together after the fact from facts independent of the test result.
What Are The Constitutional Protections at Issue?
In the realm of criminal investigation, the scheme set up by section 2522 is and always has been contrary to well established Fourth Amendment search and seizure precedent from the United States Supreme Court. The Fourth Amendment provides:
“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
That’s it. Those are your constitutional protections, the only federal constitutional limits that exist on the government’s power to search and seize you and your stuff. Without those few phrases, the government could conduct searches any way its agent desire, without constitutional limitations.
How Does a Court Decide if Fourth Amendment Protections Were Violated?
You’ll notice that the Fourth Amendment is clear that probable cause, supported by oath or affirmation, is required for issuance of a warrant. But do all searches and seizures require a warrant? If not, since the Fourth Amendment only says probable cause is necessary for a warrant, does that mean searches and seizures that don’t require a warrant may be conducted without probable cause? If so, which ones? If some searches and seizures are allowable without probable cause, do they need to be supported by something less than probable cause or are they allowable arbitrarily or on a whim? To answer these questions, we would probably need to decide whether conducting a search or seizure without a warrant or without probable cause is unreasonable, given that the Fourth Amendment expressly protects only against searches and seizures that are “unreasonable.” So, who gets to decide whether a search or a seizure is “unreasonable?” The U.S. Supreme Court declares the rules by which everyone else is to determine whether a given search or seizure would violate (at the planning stage) or has violated (at the review stage) Fourth Amendment protections.
In setting forth the rules everyone is to use to determine whether a given search or seizure would violate or has violated the Fourth Amendment, the Supreme Court has told us that warrants are not required for all searches and all seizures. But for searches, the Court has announced that a warrant is required unless the search fits within a well-recognized exception to the requirement of a search warrant. As the Court has reviewed particular cases over time, it has pronounced categorical rules for circumstances in which it is constitutionally “reasonable” to conduct a search without a warrant. But if a particular case does not fit within one of those well-recognized exceptions, we default to the general rule that a search warrant meeting the criterial expressly set forth in the Fourth Amendment is required to make the search “reasonable.”
What Search Warrant Exceptions Were At Issue?
Because of this and because searches required by 29-A M.R.S. §2522 are carried out without a search warrant, they must fit into one of the U.S. Supreme Court’s well-recognized categorical exceptions, or they are categorically “unreasonable” under the Fourth Amendment. The issue in Weddle was whether the section 2522 search that produced a sample of Weddle’s blood fit within either of two well-recognized search warrant exceptions: the probable cause and exigent circumstances exception or the special needs exception. Those were the only possible exceptions a section 2522 search might fit. If it didn’t fit one of those, it didn’t fit any. And, again, if it didn’t fit any, the Supreme Court tells us, the search was categorically unreasonable under the Fourth Amendment, because it wasn’t pursuant to a warrant. There has never been any serious question that the probable cause and exigent circumstances exception requires police to have probable cause; that there needs to be an exigency that makes it impracticable to secure a warrant; and that those two factors must exist together before the warrantless search can legitimately be carried out under this exception.
A Little Background On the Law Court’s Prior Declaration That Section 2522 Is Constitutional.
Before Weddle, in 2007, the Law Court reviewed the constitutionality of section 2522, in Sate v. Cormier, 2007 ME 112, 928 A.2d 753. In Cormier, the Law Court glossed over the requirement that probable cause must combine with exigent circumstances prior to the search to justify a search under this exception. Although the Court conceded that a section 2522 search not supported by probable cause at the time of the search does not fit “neatly” into this recognized exception, the Court found that the Maine Legislature intended for section 2522 to deal with the exigencies that exist at the scene of a fatal or near fatal accident. The Law Court also found that the Legislature considered the concepts underlying the inevitable discovery doctrine. The inevitable discovery doctrine refuses to apply the exclusionary rule if the evidence gathered in an unreasonable search would inevitably have been gathered by lawful means anyway. This exception really had no bearing on the constitutional question in Cormier, whether the section 2522 search was constitutional. But the Law Court combined its finding that the Legislature considered inevitable discovery concepts, with its finding that the Legislature intended section 2522 to deal with accident scene exigencies, and stirred the two into a blurry slurry. Applying its newly-minted slurry to the printed page, the Law Court pronounced:
“The Fourth Amendment does not prohibit all searches and seizures, only those that are unreasonable. With protections drawn from accepted Fourth Amendment jurisprudence built into the statute, we conclude that admission of the test results, if those protection requirements are met, is not unreasonable and would not violate Cormier’s Fourth Amendment rights.”
Do you see what they did there? Although the U.S. Supreme Court has created a set of categorical rules for determining whether a search is reasonable or unreasonable under the Fourth Amendment; although that set of categorical rules teaches that a warrantless search that does not fit a well-recognized search warrant exception is unreasonable; and although the Law Court conceded that section 2522 allows, if not requires, searches that do not fit into a well-recognized search warrant exception, the Court decided that section 2522 searches nevertheless do not violate the Fourth Amendment because they are “not unreasonable.” By what criteria are section 2522 searches “not unreasonable,” one might legitimately ask, other than the substituted judgement of a majority of Maine’s Law Court for that of the U.S. Supreme Court as to what rules ought to apply to determine what is an unreasonable search?
Granted, the Supreme Court sometimes engages in a balancing of the State’s interests against the intrusion on individual privacy in deciding whether a given type of search is reasonable without a warrant. But before doing that, the Supreme Court looks for guidance from practices existing at the time the United States was founded to determine the reasonableness of the particular type of search. Only if the Court finds such guidance lacking does it engage in a balancing of interests to decide the Fourth Amendment reasonableness of the particular type of search. But it is improper for a lower court to balance interests or to apply any test it might wish to apply to determine the reasonableness of a search other than the test the U.S. Supreme Court has instructed courts to apply: A search requires a search warrant unless it falls within a well-recognized exception to the search warrant requirement.
Maine’s Law Court at times demonstrates a fondness for engaging in its own balancing of interests exercise to determine the reasonableness of warrantless searches (and suspicionless seizures) that do not fit within a well-recognized exception to the search warrant requirement. That’s what they did in Cormier. But that’s not all they did in Cormier. In Cormier, they also declared that section 2522 is justified by the special needs exception to the requirement of a search warrant. The special needs exception allows the government to conduct searches without probable cause in certain circumstances where special needs beyond the normal need for law enforcement make it impracticable to require a search warrant or even probable cause. The prime example is the railroad regulation at issue in Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989), which allowed the testing of railroad employees’ blood after a serious train accident, for purposes of ensuring railroad safety as opposed to gathering evidence to pursue a prosecution.
Six years before the Law Court decided State v. Cormier, the U.S. Supreme Court decided Ferguson v. City of Charleston, 532 U.S. 67 (2001). Ferguson involved a law enforcement-driven scheme under which hospitals tested pregnant women for drug use and offered entry into a substance abuse program to those who tested positive. Those who refused the program or failed to get clean were prosecuted for their drug use during pregnancy. The Supreme Court distinguished these circumstances from the circumstances of Skinner and declared that the special needs exception does not apply in circumstances like those in Ferguson, where the primary purpose of the search is law enforcement.
In Cormier, a majority of the Law Court declared that the primary purpose of section 2522 is not law enforcement but rather the State’s concern in gathering information for policy development, to address the problem of intoxicated driving. A spot-on dissent pointed out that section 2522 is unconstitutional because it does not fit within the probable cause and exigent circumstance exception, does not meet the Supreme Court’s test for inevitable discovery, and fails to qualify for the Supreme Court’s special needs exception because its primary purpose is clearly that of law enforcement.
In Weddle, more than 12 years after Cormier a majority of the Law Court came to the same conclusions as the dissent in Cormier. What changed in the way of Supreme Court pronouncements on the issues at hand between 2007 and 2020? Not all that much, really. As the Weddle majority pointed out, it could not find a single case anywhere (other than Cormier) standing for the proposition that a search can be validated by facts in support of probable cause discovered by law enforcement after the search is conducted. There were also zero cases standing for that proposition when Cormier was decided, which should have provided a strong hint to the Cormier majority as to the strength of its conclusion.
What Explains the Law Court’s Reversal on the Constitutionality Question?
Rather than being explained by any change of direction from the U.S. Supreme Court, the Weddle outcome is the result of the Weddle majority faithfully applying the Supreme Court’s test to determine the issue, instead of making their own reasonableness judgment call as the majority did in Cormier. But still, there is a concurrence in Weddle, and that concurrence declares that the search for Weddle’s blood was reasonable under the Fourth Amendment despite being warrantless and despite not being supported by probable cause when it was conducted. Why was it reasonable? Because, the concurring Justices think it was reasonable, that’s why. Which represents nothing other than the substitution of their own constitutional reasonableness test for the U.S. Supreme Court’s. If Fourth Amendment protections provide any protection at all, don’t they have to be determined by something more than what is reasonable in the eye of any given robed beholder?
By winning the argument on the unconstitutionality of section 2522, Weddle served us all. He brought the Law Court to a faithful application of U.S. Constitutional law. Maine law enforcement are now required to comply with the Fourth Amendment when they draw blood in an accident case, just as they must comply with the Fourth Amendment when they draw blood in other contexts. They will need a search warrant, or consent, or probable cause and exigent circumstances in the particular case. When blood is drawn by hospital personnel during treatment, police will continue to get a warrant to secure a portion of the sample from the hospital. As for delays in securing search warrants, the executive branch will have to work with the judicial branch to speed implementation of methods to secure warrants telephonically and electronically. The State will not have to reinvent the wheel. There are many places to look for the model to follow. But, in this context anyway, police will no longer be allowed to fudge or ignore the U.S. Constitution under color of Maine law.
But Weddle Lost Anyway — Oh The Irony.
As for Weddle’s own blood test result, the Law Court unanimously found it was properly admitted into evidence, because the police who took his blood reasonably relied upon section 2522 and the authority of State v. Cormier. Given that the police acted in good faith reliance on what seemed to be settled law that section 2522 was constitutional, it would not serve the deterrent purposes of the exclusionary rule to suppress the results of Weddle’s blood test. In other words, police might be deterred from engaging in unconstitutional searches if the fruits of those searches are suppressed and kept out of evidence. But how can police be deterred by the exclusion of evidence that they gather while following what they reasonably believe to be constitutional procedures based on the interpretation of the State’s highest court? The irony is that the procedures police relied upon appeared to be constitutional only because the Law Court ruled them constitutional in Cormier, despite U.S. Supreme case law that made it abundantly clear section 2522 searches are unreasonable Fourth Amendment searches.
What happens to our Fourth Amendment protections when they are not upheld by our state courts through faithful application of rules set forth by the U.S. Supreme Court? As a practical matter, they dissolve, don’t they? How do we deter that?
Related Posts on the killing-off of the exclusionary rule, and how we might better ensure that Fourth Amendment protections are more than mere words without it: