Consent is not valid
if suspect is intoxicated or injured- Under influence consent not valid
For
informed consent to be valid police have to advise someone either that they are
under arrest for a specific charge or that they are investigating a particular
offense. See State v. A.G.D.178 N.J. 56 (2003).
According to the Supreme Court in A.G.D.:
“Our approach here is analogous to the
approach taken in respect of New Jersey's administration of the so-called
"target doctrine." Under the general contours of that doctrine, an
individual being questioned before a grand jury who is also the target of the
investigation must be advised of that fact in addition to receiving Miranda
warnings. State v. Vinegra, 73 N.J. 484,
490, 376 A.2d 150 (1977). Knowing one's "target" status
is essential "in order for the witness to intelligently determine whether
he/she wishes to exercise [his or her] constitutional rights[.]" 31 New
Jersey Practice, Criminal Practice and Procedure § 10.35 at 426-27 (Leonard
N. Arnold) (2002). As with the rule announced today, "[the common law
privilege against self-incrimination in New Jersey as expounded in our target
doctrine seems to afford greater protection than that given by the Fifth Amendment."
Vinegra, supra,
73 N.J. at 490, 376 A.2d 150.(Emphasis added).
This brief is submitted in support of
defendant’s motion to suppress evidence sample evidence obtained without a
warrant.
STATEMENT OF FACTS
Legal Argument
It is defendant’s
position that the non voluntary of a urine sample for non-medical prosecutorial
purposes, without consent or a warrant violated the 4th Amendment of
The Constitution and was contrary to Missouri v. McNeely, 133 S. Ct.
1552 (2013).
I. THE WARRANTLESS URINE SAMPLE WAS
ILLEGALLY OBTAINED AND SHOULD BE EXCLUDED PURSUANT TO MISSOURI V. MCNEELY.
The United States
Supreme Court recently held that in drunk-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. Missouri
v. McNeely, 133 S. Ct. 1552 (2013). The Court further held that when
officers in drunk-driving investigations can reasonably obtain a warrant before
having a blood sample drawn without significantly undermining the efficacy of
the search, the Fourth Amendment mandates that they do so. Id. at 1555. Missouri v. McNeely applies to Mr. Steven’s case,
and the exclusionary rule should apply.
Missouri v.
McNeely reevaluated the almost 50 year old decision in Schmerber v.
California, 384 U.S. 757 (1966), which squarely addressed the question of
“whether the natural metabolization of alcohol in the bloodstream presents a per
se exigency that justifies an exception to the Fourth Amendment’s warrant
requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely,
133 S. Ct. at 1556. The U.S. Supreme Court concluded that the natural
metabolization of alcohol does not
create a per se exigency, and that exigency must be determined on a case by
case basis, based upon the totality of the circumstances. Id. In so
holding, the McNeely Court observed that the principle that a
warrantless search of the person is reasonable only if it falls within a
recognized exception to the warrant requirement applies to the taking of blood
samples, which “involve[s] a compelled physical intrusion beneath [a person’s]
skin and into his veins to obtain a sample of his blood for use as evidence in
a criminal investigation. Such an invasion of bodily integrity implicates an
individual’s ‘most personal and deep-rooted expectations of privacy.’” McNeely,
133 S.Ct. at 1558 (internal citations omitted). See also Handbook “ Handing
Drug, DWI & Serious Cases” NJ ICLE by Vercammen & Menzel 2015
The Court acknowledged
the fact that once the alcohol is fully absorbed, the human body’s natural
metabolic process causes the alcohol level in a person’s blood to dissipate and
to continue to decline until the alcohol is eliminated and, therefore, a
significant delay in testing will negatively impact the probative value of the
results. McNeely, 133 S.Ct. at 1560. Nevertheless, the Supreme Court
said:
But
it does not follow that we should depart from careful case-by-case assessment
of exigency and adopt the categorical rule proposed by the State . . . . 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. See McDonald v. U.S., 225 U.S. 451, 456 (1948) (“We
cannot . . . excuse the absence of a search warrant without a showing by those
who seek exemption from the constitutional mandate that the exigencies of the
situation made [the search] imperative”). We do not doubt that 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. That, however, is a reason to
decide each case on its facts, as we did in Schmerber, not to accept the
“considerable overgeneralization” that a per se rule would reflect.
McNeely, 133 S.Ct. at
1561 (some internal citations omitted) (emphasis added). Thus, the Supreme
Court rejected the notion that the evanescent nature of alcohol in and of
itself creates an exigency justifying a warrantless drawing of a suspect’s
blood. Rather, the McNeely Court
mandated the requirement of a warrant for obtaining a blood sample and
reaffirmed that each case be decided based upon its own facts under the
totality of the circumstances. The McNeely Court continued:
Consider,
for example, a situation in which the warrant process will not significantly
increase the delay before the blood test is conducted because an officer can
take steps to secure a warrant while the suspect is being transported to a
medical facility by another officer. In such a circumstance, there would
be no plausible justification for an exception to the warrant requirement.
McNeely, 133 S. Ct. at
1561 (emphasis added).
It is respectfully
submitted that facts of the case at bar present precisely
the type of scenario under which McNeely mandates the Court find “no
plausible justification for an exception to the warrant requirement.” Id.
In all that time,
no officer made any effort to telephone in for a warrant. Judges are available
24 hours a day. Judges answer calls for Domestic Violence cases every night
within seconds of the call.
The McNeely
Court further observed that the per se rule urged by the State failed to
account for technological advances in the 47 years since Schmerber was
decided. More specifically, the Court noted the 1977 amendment to the Federal
Rules of Criminal Procedure, which allowed for warrants to issue based upon
testimony communicated via telephone. The Court also took note of innovations
by individual states, which allowed for search warrant applications to be made
by telephonic, radio or other electronic communication such as e-mail and video
conferencing. Ironically, in a footnote to this observation, the U.S. Supreme Court cited as an example
of such State innovations, New Jersey Rule 3:5-3(b) which allows a Superior
Court Judge to issue a search warrant based upon testimony from an applicant
who is not physically present, but who may communicate sworn testimony via
telephone, radio or other electronic communications.
Thus, the Supreme
Court reasoned that as means of communication have drastically changed since Schmerber
was decided in 1966, so too have the means by which a law enforcement officer
may apply for a warrant drastically changed. With the advent of greater methods
of electronic communications including cellular phones, from which we can make
phone calls as well as send text and e-mail messages, we have also gained the
ability to communicate immediately with nearly anyone in any location from
almost anywhere.
Moreover, the fact
that defendant was “injured” in an accident is not a per se emergent
circumstance, since every time a driver is injured in an accident it would
divest the individual of his constitutional rights. Rather the analysis set
forth in McNeely, is whether the police were under circumstances that
prevented them from obtaining a warrant. Thus, under McNeely, the
question of whether or not exigent circumstances, or special facts, are present
sufficient to justify a warrantless blood draw must be analyzed on a
case-by-case basis based upon the totality of the circumstances.
With regard to the
automobile exception to the warrant requirement, the Court stated:
[T]he
fact that people are “accorded less privacy in . . . automobiles because of
th[e] compelling governmental need for regulation,” California v. Carney,
471 U. S. 386, 392 (1985), does not diminish a motorist’s privacy interest in
preventing an agent of the government from piercing his skin. As to the nature
of a blood test conducted in a medical setting by trained personnel, it is
concededly less intrusive than other bodily invasions we have found
unreasonable . . . We have never retreated, however, from our recognition
that any compelled intrusion into the human body implicates significant,
constitutionally protected privacy interests.
McNeely, 133 S.Ct. at
1564 (some internal citations omitted, emphasis added)
In the present
instance, the state has not and indeed cannot, articulate any special
circumstance which prohibited any one of the police officers on scene from
using a police radio, cell phone (work or personal), hospital phone, police
station phone, fax machine or computer to obtain a telephonic or written
warrant.
Despite the
availability of technology to do so, as well as the abundance of time between
calling and waiting for EMS to arrive, and the drive to the hospital, police
had ample opportunity to obtain a warrant to seize his urine. Further, the fact
that the driver was injured, alone, does not create an emergent circumstance
that would enable officers to bypass the warrant requirement. The driver was
not dying; in fact, The driver was stabilized, conscious, and responsive. Additionally, police behavior did not
indicate that they believed there to be exigent circumstances, prohibiting the
application for search warrant. As such,
the officers should have obtained a warrant to extract a sample of his urine
where they did not obtain valid consent.
The US
Supreme Court recently rejected DWI blood test without warrant, Birchfield v. North Dakota ___
S. Ct. ___ (2016) No. 14-1468.
Held:
1. The Fourth Amendment permits
warrantless breath tests incident to arrests for drunk driving but not
warrantless blood tests.
Blood tests “require piercing the skin”
and extract a part of the subject’s body, Skinner, supra, at 625,
and thus are significantly more intrusive than blowing into a tube. A blood
test also gives law enforcement a sample that can be preserved and from which
it is possible to extract information beyond a simple BAC reading. That
prospect could cause anxiety for the person tested.
However, even if the defendant was lawfully detained, the State must have the evidence that Defendant provided a
(1) knowing; (2) voluntary; (3) informed,
consent to a search. See State v.
Johnson, 68 N.J. 349, 359 (1975) ( “To be voluntary the consent must be
"unequivocal and specific" and "freely and intelligently given."
The burden of proof is on the State to establish by clear and positive
testimony that the consent
was so given. 44 N.J. at 352 (citations omitted); see also
State v. Rice,
115 N.J. Super. 128, 131
(App. Div. 1971); State v. Guadiosi,
97 N.J. Super. 565,
571-72 (App. Div. 1967); State v.
Price, 108 N.J. Super. 272, 282 (Law Div. 1970); Schenckloth v. Bustamonte, 412 U.S. 218
(1973); U.S. v. Hurtado, 905 F.2d 74
(5th Cir. 1990); “A waiver, to be enforceable, must not only be voluntary
but also knowing and intelligent.” People v. Seaberg, 74 NY 2d 1, at 11
(1989). The New Jersey constitution
places a heavier burden on the State of establishing that consent was freely
and knowingly given. State v. Bindhammer, 44 N.J. 372, 380
(1965).
The hospitals often administer pain-relieving
medications to injured persons. Someone administered morphine or other meds at
the hospital does not have mental state to consent to sign legal contracts.
The
consent must be, "clear, express, and unequivocal." State v. Sugar, 100 N.J. 214 (1985) appeal
after remand, 108 N.J. 151 (1985). Additionally, Art. I, par. 7 of the New
Jersey Constitution of 1947 require the State to show that Defendant knew that he
had a right to refuse to consent to the search. State v. Johnson, 68
N.J. 349 (1975). See also State
v. Sugar, 100 N.J. 214 (1985). Even
if Defendant allegedly gave oral consent to search, The driver did so in an
inherently coercive atmosphere such that the driver could not have freely
refused consent. See e.g. State
v. Allen, 254 N.J. Super. 62 (App. Div. 1992); State v. Abreu, 257
N.J.Super. 549 (App. Div. 1992) (consent invalid if police conveyed
"message" that compliance is required).
The State bears the burden
of proof by clear and convincing evidence.
In In re Seaman, 133 N.J. 67, 74 (1993), the Supreme Court explained
what clear and convincing means:
"Clear-and-convincing
evidence is that which produces in the mind of the trier of fact a firm belief
or conviction as to the truth of the allegations sought to be established,
evidence so clear, direct and weighty and convincing as to enable the fact
finder to come to a clear conviction, without hesitancy, of the precise facts
in issue" (internal quotation marks and brackets omitted).
Thus, the
State "has the burden of demonstrating knowledge on the part of the person
involved that he had a choice in the matter." Ibid; see also
State v. Carty, 170 N.J. at 639.
The State must prove that consent to a warrantless search was
"unequivocal, voluntary, knowing and intelligent." Sugar, 108
N.J. 151, 156 (1987). The State must
"prove voluntariness by clear and positive testimony." State v.
Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000).
Furthermore, under civil contract law, where a person is, “so excessively drunk that
he was utterly deprived of the use of reason[,]” he should be “permitted to
defend himself, in a court of law,” against the contract he is alleged to have
entered into. Burroughs v. Richman, 13 N.J.L. 233, 238
(Sup. Ct. 1832). While his alleged intoxication does not excuse the offense,
itself, it does account for his state of mind at the time he agreed to sign
away his rights. See id. And whether that person will later face
civil or criminal suit does not ultimately bear on how his state of mind at the
point of intoxication affected his decision-making ability. When signing away
rights, the courts must look to whether the person signing was non compos mentis; and if he is deemed
to have been, then the signature cannot constitute valid consent. See id.
At 236-37.
In Burroughs v. Richman, the original Supreme Court
held that a defendant should be able to prove that he was so incapacitated that
he could not have understood that he was entering into a contract. 13 N.J.L. at
238-39. The court remanded the case saying, “if it appeared satisfactorily, that the defendant
was so absolutely drunk, as to be deprived of the use of his understanding, the
defense should have availed him.” Id. The same reasoning must apply
here. While intoxication cannot be a defense to Defendant’s alleged offense, it
must be a factor in the determination of whether the driver voluntarily
consented to a urine draw.
In criminal code, Title 2C, the
legislature has made clear that incapacitation and/or intoxication negates
consent as a matter of law. See e.g. N.J.S.A.
2C:14-2(a)(7) Aggravated Sexual Assault Victim (victim mentally / physically
incapacitated).
This record hardly establishes the requisite clear and
convincing evidence necessary to overcome a presumably invalid search and
seizure. Further,
If this Court finds
that the requisite consent was given (and it was not), how could someone in
Defendant’s condition even understand what was being told to his and what right
the driver was waiving. If the police reports are
accepted, certainly no court under prevailing statutory and case law could
conclude that Defendant was in any condition to consent to, for example
entering into a contract, executing a will or to sexual activity. Id. The officer, himself, without taking a
breath sample, believed Defendant to be intoxicated enough so as to issue his a
DWI without substantiating his belief.
In the hospital, police officers and medical staff had full knowledge
that the driver, was injured, and restrained in a neck brace, yet they presented
him with the consent form that they had filled out for her. The driver then
signed without fully comprehending his actions.
Consent must be voluntary pursuant to the
Fourth Amendment of the United States Constitution. See Schneckloth
v. Bustamonte, 412 U.S. 218, 224 (1973).
Courts have held consistently over the years that persons who are so
incapacitated that they are unable to understand the gravity of their actions
are deemed non compos mentis for the
purpose of entering contracts or providing consent. See id.
(“Except where a person is unconscious or drugged or otherwise lacks capacity
for conscious choice, all incriminating statements -- even those made under
brutal treatment -- are 'voluntary' in the sense of representing a choice of
alternatives.”). The facts in the record
clearly indicate that Defendant was non
compos mentis for the purposes of providing his consent to a urine draw.
For that reason, despite his signing the document placed in front of his consent was not knowing or voluntary and,
therefore, it cannot stand.
II.
THE URINE SAMPLE MUST BE SUPPRESSED
BECAUSE DEFENDANT WAS NOT ABLE TO CONSENT TO THE URINE DRAW AND THE POLICE
FAILED TO OBTAIN A WARRANT TO RETRIEVE IT.
It is the most basic tenet of Fourth Amendment
jurisprudence that in order to lawfully search and seize evidence from a
defendant’s person, an officer must obtain valid consent or a warrant. See
generally Weeks v. United States, 232 U.S. 383 (1914); Mapp v.
Ohio, 367 U.S. 643 (1961); Georgia v. Randolph, 547 U.S. 103 (2006).
Without such a valid consent or warrant, the search is unlawful and the seizure
is suppressible. In instances of taking blood samples, the Supreme Court has
held that the dissipation of alcohol in the bloodstream is not a per se
exigency so as to circumvent the warrant requirement. Missouri v. McNeely,
133 S. Ct. 1552, 1556 (2013). Such an intrusion into the body to retrieve the
body’s contents requires a warrant if proper consent is not obtained. Id.
at 1557-68. New Jersey courts recognized the decision in McNeely in State
v. Adkins, 433 N.J. Super. 479, 484 (App.Div. 2013), and will apply the new
standard to cases going forward.
In
Rochin v. California, 342 U.S. 165, 172-73 (1952), the Supreme Court
held that it was a violation of due process for police officers to enter the
defendant’s home and, without a warrant, forcibly pump his stomach against his
will to uncover illegal drugs used to later convict him. That type of behavior,
the Court said, shocks the conscious. Id. And while the “shocks the
conscious” standard has since been abandoned in these cases, as discussed in Lester
v. Chicago, 830 F.2d 706, 710-12 (7th Cir. 1987), the holding
remains the same, as entering an individual’s body without his consent to
withdraw the contents would be an unreasonable search and seizure violative of
the Fourth Amendment.
In
State v. Ravotto, 169 N.J. 227, 252 (2001), the New Jersey Supreme Court
held that where the defendant did not consent and the police did not obtain a
court order to extract a blood sample from him, that seizure was a violation of
the defendant’s Fourth Amendment right to be free from unreasonable searches
and seizures. As such, the evidence was suppressed. Id.
Here,
Defendant may be too physically incapacitated to provide consent. The driver had injuries from the car
accident. If the police are believed the
driver Defendant was also intoxicated, they would not let the person drive
further because of incapacity. As a
result, the form was filled out by an agent of law enforcement, with all of Defendant’s
information, and then presented in front of his to sign. Because these
circumstances indicate his lack of consent, the police had to have obtained a
warrant to take his urine. They did
not. As such, the evidence unlawfully
obtained as a result of the nonconsensual warrantless search must be
suppressed.
Remember that in order for
any consent or waiver it has to be done a. knowingly b. voluntarily c.
intelligently - so police have to tell you what you are under investigation for
or else your waiver / consent is no good. This is usually the case
where you think you are under arrest for a 4:50 only then all of a sudden
you are being charged with endangering/ assault by auto / homicide. See State in the interest of A.G.D., 178 N.J. 56 (2003).
The
Court held in A.G.D:
“Our approach here is analogous to
the approach taken in
respect of New Jersey’s
administration of the so-called “target
individual being questioned before a grand jury who is
also the
target of the investigation must be advised of that fact
in
addition to receiving Miranda warnings. State v.
Vinegra, 73
N.J. 484, 490 (1977). Knowing one’s “target” status is
essential “in order for the witness to intelligently
determine
whether he/she wishes to exercise [his or her]
constitutional
rights[.]” 31 New Jersey Practice, Criminal Practice
and
Procedure §10.35 at 426-27 (Leonard N. Arnold) (2002).
As with
the rule announced today, “[t]he common law privilege
against
self-incrimination in New Jersey as expounded in our
target
doctrine seems to afford greater protection than that
given by
the Fifth Amendment.” Vinegra,
supra, 73 N.J. at 490.”
Finally, Keep in mind confusion doctrine in
the last couple of cases the following occurs at the hospital and not
necessarily in this order- client may have honestly believe that he was giving
blood or urine for treatment and not to prosecute themselves.
Any
response to the police in custody usually violates Miranda unless Mirandized -
so therefore the execution of the consent form may be poison fruit if police
did not Mirandize the client before signing the consent
form.
“It is clear that the protection of
the privilege (against self-incrimination) reaches an accused’s communications,
whatever form they might take, and the compulsion of responses which are also
communications...” State v. Nece, 206 N.J.Super. 118, 122 (Law Div.
1985), citing Schmerber v. California, 384 U.S. 757. See
also State v. Mason, 164 N.J.Super 1 (App.Div. 1979).
The New Jersey model jury charge states that:
Mentally
defective means that condition in which a person suffers from
a mental disease or defect which renders that person temporarily or
permanently incapable of understanding the nature of (his/her) conduct,
including but not limited to, being incapable of proving consent. A person is mentally defective if, at the time
of the sexual activity, the mental disease or defect rendered (him/her) unable
to comprehend the distinctively sexual nature of the conduct, or incapable
of understanding or exercising the right to refuse to engage in such conduct
with another. It includes both the
capacity to understand and the capacity to consent with respect to personal
sexual activity. The capacity to consent involves knowing that one’s body is
private and is not subject to the physical invasions of another and that
one has the right and ability to refuse to engage in sexual activity. The capacity to understand, which is part of
the idea of the capacity to consent, involves the knowledge that the conduct is
distinctively sexual. Here, that
knowledge extends only to the physical or physiological aspects of sex; it does
not extend to an awareness that sexual acts may be morally right or wrong and
have probable serious consequences, such as pregnancy and birth, disease,
infirmities, adverse psychological or emotional disorders.
Mentally incapacitated
means that condition in which a person is rendered temporarily incapable of
understanding or controlling (his/her) conduct due to the influence of a
narcotic, anesthetic, intoxicant, or other substance administered to that
person without (his/her) prior knowledge or consent, or due to any other act
committed upon that person which rendered that person incapable of appraising
or controlling (his/her) conduct.
The fourth element that the State must prove beyond a reasonable doubt is
that [in this case the police officer asking for consent] knew or should
have known that the (name of
victim) was [choose appropriate] physically helpless, mentally defective or
mentally incapacitated.
