United States v. Millner

UNITED STATES OF AMERICA v. DAWN M. MILLNER, Defendant

Case No. 8:13-po-09475-TMD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

June 3, 2015

AMENDED MEMORANDUM OPINION AND ORDER OF COURT

After a hearing on Defendant's Motion to Suppress Search and Seizure (the "Motion") (ECF No. 11), the Court issued a memorandum opinion and order (ECF No. 17) denying the Motion. After further consideration, the Court issues this amended, superseding memorandum opinion and order, again denying the Motion (ECF No. 11), for the reasons stated below. See United States v. Muir, No. 8:13-MJ-03005-TMD, 2015 WL2165570 (D. Md. May 7, 2015).

BACKGROUND

On August 18, 2013, at about 1:00 a.m., Officer Meghan Farrell was traveling northbound in her fully marked United States Park Police ("USPP") cruiser in Maryland on the Baltimore-Washington Parkway, which is in the special maritime and territorial jurisdiction of the United States. She observed Defendant's vehicle traveling ahead of her slowly in the left lane, causing other vehicles behind Defendant's vehicle to swerve around it in order to pass. Activating her radar, Officer Farrell observed Defendant's vehicle traveling at a speed of 50 miles per hour, below the posted speed limit of 55 miles per hour. The officer also observedDefendant's vehicle swerving in its lane and crossing the left fog line twice. Officer Farrell thus approached Defendant's vehicle and activated her emergency equipment to effect a traffic stop.

After stopping and approaching Defendant's vehicle to inform her of the reason for the stop and to request her driver's license and vehicle registration, Officer Farrell detected an odor of alcohol emanating from the vehicle. Officer Farrell asked Defendant if she had consumed any alcoholic beverages that evening. Defendant responded that she had "a few," but that she was fine. The officer then requested Defendant to exit the vehicle in order to submit to standardized field sobriety tests. Officer Farrell also administered a roadside breath test. On the basis of Defendant's performance on the tests and her observations, Officer Farrell arrested Defendant for driving under the influence ("DUI") of alcohol. Defendant's vehicle was impounded.

Officer Farrell then transported Defendant to the District 4 station, which took about seven minutes, where Defendant was searched and advised of her rights. Officer Farrell also read to Defendant the following "36 CFR Chemical Testing Notice" on a USPP Form 21C ("Form 21C") in the station's processing room, where a copy of the notice also was affixed to a wall for Defendant to read:

36 CFR CHEMICAL TESTING NOTICE

There is probable cause to believe that you were operating or were in physical control of a motor vehicle while under the influence of alcohol and/or drugs to the degree that rendered you incapable of safe operation, in violation of 36 CFR 4.23. The regulation requires you to submit to one or more tests of your breath, blood, urine, and/or saliva at the direction of a law enforcement officer to determine the sample's alcohol and/or drug content. Refusal to provide one or more samples of breath, blood, urine and/or saliva for testing is PROHIBITED. Your consent is NOT required to obtain any sample, and a sample MAY BE taken without your permission.

If a sample cannot be obtained through the reasonable efforts of the police, you will be charged with refusal to submit to chemical testing, an offense that carries a maximum penalty of imprisonment for six months, a fine of $5000.00, or both, and a special assessment fee of $10.00 and a processing fee of $25.00.

Furthermore, evidence of refusal may be admissible in any related judicial proceeding.

Gov't Ex. 1, ECF No. 13-1. Below these paragraphs on the form, a section titled "PERSON RECEIVING NOTICE (Check boxes that apply-if able/not handcuffed)" delineated three options: (1) "I Will Submit To Testing," (2) "I Refuse to Submit To Testing," and (3) "Sample Taken Without Consent or Permission." Officer Farrell then asked Defendant to check one of the three boxes on the form and sign it. Officer Farrell did not recall whether Defendant asked any questions, but the officer did not threaten Defendant to compel her to take the breath test. Defendant checked the box marked "I Will Submit To Testing" and printed and signed her name on the form. Officer Farrell as the advising officer also printed her name and signed the form.

After Officer Farrell instructed Defendant on how to perform the breath test and allowed her to practice, she submitted to the test by blowing into a mouthpiece with a tube attached to a machine. As a result of the breath test, Defendant was charged with, among other offenses, driving under the influence of alcohol in violation of 36 C.F.R. § 4.23(a)(1) and (2). It is undisputed that Officer Farrell did not attempt to obtain a warrant before administering the breath test.

DISCUSSION

Defendant seeks to have the breath test in this case suppressed because the police did not obtain a warrant before administering the test. Def.'s Mem. Supp. Mot. Suppress 1-6, ECF No. 12. Specifically, Defendant maintains that the warrantless breath test in this case does not fall within any of the following recognized exceptions to the warrant requirement: exigent circumstances, consent, or search incident to arrest. Id. at 2-6. Therefore, relying on the Supreme Court's decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013), Defendant argues that Officer Farrell was required to obtain a warrant before administering the breath test.

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. Thus, "[t]he Fourth Amendment prohibits only unreasonable searches." Grady v. North Carolina, 135 S. Ct. 1368, 1371 (2015) (per curiam). With limited exceptions, warrantless searches are presumptively unreasonable. United States v. Karo, 468 U.S. 705, 717, 104 S. Ct. 3296, 3304 (1984). Exceptions to the Fourth Amendment's warrant requirement include consent, Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973), search incident to a lawful arrest, Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716 (2009), and exigent circumstances, Mincey v. Arizona, 437 U.S. 385, 393-94, 98 S. Ct. 2408, 2414 (1978).

The Supreme Court has recognized that

[v]irtually any "intrusio[n] into the human body," Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 16 L.Ed.2d 908 (1966), will work an invasion of "'cherished personal security' that is subject to constitutional scrutiny," Cupp v. Murphy, 412 U.S. 291, 295, 93 S. Ct. 2000, 36 L.Ed.2d 900 (1973) (quoting Terry v. Ohio, 392 U.S. 1, 24-25, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968)).

Maryland v. King, 133 S. Ct. 1958, 1969 (2013) (alteration in original). The Fourth Amendment has been applied in cases involving police efforts to scrape an arrestee's fingernails to obtain trace evidence, see Murphy, supra, to draw blood, see McNeely, supra; Schmerber, supra, and to use a buccal swab on the inner tissues of a person's cheek in order to obtain DNA samples. See King, supra. The Fourth Amendment further applies to a breathalyzer test. King, 133 S. Ct. at 1969 (citing Skinner v. Ry. Labor Execs.' Ass'n 489 U.S. 602, 616, 109 S. Ct. 1402, 1413 (1989)). Thus, a warrant would presumptively be required before a breath test could be administered, unless an exception to the warrant requirement applies.

To determine the constitutionality of a particular search, the Court "must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703, 103 S. Ct. 2637, 2642 (1983). "The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations." Grady, 135 S. Ct. at 1371.

The issue presented in this case was addressed recently by the Intermediate Court of Appeals of Hawai'i. State v. YongShik Won, 332 P.3d 661 (Haw. Ct. App. 2014), cert. granted, No. SCWC-12-0000858, 2014 WL 2881259 (Haw. June 24, 2014). In balancing the intrusion of the Fourth Amendment interests of a person arrested for DUI against the governmental interest in deterring drunk drivers, the court explained that

[t]he governmental interest in protecting lives, securing the safety of our public roads, and deterring drivers from operating vehicles while intoxicated is strong and compelling. On the other hand, the intrusion on personal privacy effected by a breath-test search under the statutory scheme is quite limited. Only a driver arrested on probable cause of [DUI], who already has a diminished expectation of privacy because he or she is in custody, see King, 133 S. Ct. at 1978, is subject to a breath test. Such a driver's objective expectation of privacy is further diminished by the implied consent to breath testing imposed by statute, which gives a driver statutory notice that if arrested for [DUI], "some reasonable police intrusion on his [or her] privacy is to be expected." Id. at 1969. The breath test itself is minimally intrusive. See Skinner, 489 U.S. at 625, 109 S. Ct. 1402. Unlike more intrusive blood tests, breath tests do not require piercing the skin, are safely conducted outside the hospital environment, and involve a minimum of inconvenience or embarrassment. Id. They only reveal very limited and targeted information-the level of alcohol in a driver's system. Id. Moreover, the breath tests are based on the driver's implied consent to testing that is given in exchange for the privilege of driving . . . . [T]he purpose of the implied consent statute would be defeated if a driver could freely withdraw his or her consent to

...