IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. RECEIVED, 7/27/2015 3:20 PM, Joanne P. Simmons, Fifth District Court of Appeal

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT RECEIVED, 7/27/2015 3:20 PM, Joanne P. Simmons, Fifth District Court of Appeal STATE OF FLORIDA, Appellant, v. CASE NO. 5D15-405 JOHN NATHAN WILLIS, Appellee, / ON APPEAL FROM THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA INITIAL BRIEF OF APPELLANT PAMELA JO BONDI ATTORNEY GENERAL KRISTEN L. DAVENPORT ASSISTANT ATTORNEY GENERAL Fla. Bar #909130 444 Seabreeze Blvd. Fifth Floor Daytona Beach, FL 32118 (386) 238-4990 crimappdab@myfloridalegal.com COUNSEL FOR APPELLANT

TABLE OF CONTENTS TABLE OF AUTHORITIES.................... ii STATEMENT OF THE CASE..................... 1 STATEMENT OF FACTS...................... 2 SUMMARY OF ARGUMENT...................... 6 ARGUMENT THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT S MOTION TO SUPPRESS......... 7 CONCLUSION......................... 26 CERTIFICATE OF SERVICE................... 27 CERTIFICATE OF COMPLIANCE.................. 27 i

TABLE OF AUTHORITIES FEDERAL CASES: Arizona v. Gant, 556 U.S. 332 (2009).................... 22 Burnett v. Municipality of Anchorage, 634 F. Supp. 1029 (D. Alaska), affd, 806 F.2d 1447 (9th Cir. 1986)........... 15,22 Byrd v. Clark, 783 F.2d 1002 (11th Cir.1986)............... 23 Davis v. United States, 131 S. Ct. 2419 (2011)................... 25 Maryland v. King, 133 S. Ct. 1958 (2013)................... 21 Missouri v. McNeely, 133 S. Ct. 1552 (2013).................. ibid. Schmerber v. California, 384 U.S. 757 (1966)................... ibid. United States v. Leon, 468 U.S. 897 (1984).................... 24 United States v. Reid, 929 F.2d 990 (4th Cir.1991)................ 22 STATE CASES: Beylund v. Levi, 859 N.W.2d 403 (N.D. 2015)................. 22 Brown v. State, 24 So. 3d 671 (Fla. 5th DCA 2009), rev. denied, 39 So. 3d 1264 (Fla. 2010).......... 25 Butler v. State, 801 So. 2d 992 (Fla. 2d DCA 2001), cert. denied, 537 U.S. 1055 (2002)............. 24 Commonwealth, Department of Transport v. McFarren, 525 A.2d 1185 (Pa. 1987).................. 23 ii

Connor v. State, 803 So. 2d 598 (Fla. 2001), cert. denied, 535 U.S. 1103 (2002).............. 7 Dewberry v. State, 905 So. 2d 963 (Fla. 5th DCA 2005).............. 7 Jackson v. State, 456 So. 2d 916 (Fla. 1st DCA 1984)............. 13 Rowley v. Commonwealth, 629 S.E.2d 188 (Va. Ct. App. 2006)............. 15 Seibert v. State, 923 So. 2d 460 (Fla.), cert. denied, 549 U.S. 893 (2006).............. 7 State v. Bernard, 859 N.W.2d 762 (Minn. 2015)................ 22 State v. Birchfield, 858 N.W.2d 302 (N.D. 2015)................. 22 State v. Caporuscio, 21 Fla. L. Wkly. Supp. 930b (Volusia Cty. May 22, 2014).. 16 State v. Dowdy, 332 S.W.3d 868, 870 (Mo. Ct. App. 2011).......... 23 State v. Finnegan, 21 Fla. L. Wkly. Supp. 329a (19th Cir. Oct. 28, 2013)... 25 State v. Geiss, 70 So. 3d 642 (Fla. 5th DCA 2011), rev. dismissed, 88 So. 3d 111 (Fla. 2012)........ 12,14 State v. Hill, 2009 WL 1485026, at *5 (Ohio Ct. App. May 22, 2009).... 23 State v. Johnson, 744 N.W.2d 340 (Iowa 2008)................. 17 State v. Langsford, 816 So. 2d 136 (Fla. 4th DCA 2001)............. 13 State v. McNeely, 358 S.W.3d 65 (Mo. 2012).................. 11 iii

State v. Nickell, 21 Fla. L. Wkly. Supp. 933a (Volusia Cty. May 22, 2014)... 16 State v. Payano-Roman, 714 N.W.2d 548 (Wis. 2006), cert. denied, 549 U.S. 935 (2006)............. 23 State v. Rodriguez, 156 P.3d 771, 781 (Utah 2007)............... 17 State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995)............. 13 State v. Stalder, 630 So. 2d 1072 (Fla. 1994)................. 8 State v. Watt, 946 So. 2d 108 (Fla. 5th DCA 2007), rev. denied, 51 So. 3d 1156 (Fla. 2010).......... 24 State v. Williams, 2015 WL 3511222 (Fla. 5th DCA June 5, 2015)....... ibid. State v. Yong Shik Won, 332 P.3d 661 (Haw. Ct. App.), cert. granted, 2014 WL 2881259 (Haw. June 24, 2014)... 15, 2 State v. Young, 483 So. 2d 31 (Fla. 5th DCA 1985), rev. dismissed, 517 So. 2d 691 (Fla. 1988)......... 15 Wing v. State, 268 P.3d 1105, 1110 (Alaska Ct. App. 2012)......... 23 iv

STATEMENT OF THE CASE The Defendant was charged by information with DUI manslaughter and vehicular homicide. (R. 11-12). He filed a motion to suppress his blood alcohol test results, contending that the blood draw was an illegal search. (R. 43-47). A hearing was held. (R. 114-78). The trial court entered a written order granting the motion to suppress. (R. 48-49). The State timely appealed from the trial court s order. (R. 101). This Court has jurisdiction pursuant to Rule 9.140(c)((1)(B) of the Florida Rules of Appellate Procedure. 1

STATEMENT OF FACTS On August 17, 2012, Corporal Neutzling of the Florida Highway Patrol was called to the scene of a traffic fatality, arriving at the scene just before midnight. (R. 119-20). The victim had been riding on the back of the Defendant s motorcycle and fell from the motorcycle onto the road when the Defendant changed lanes; the victim was then run over by another car. (R. 43). Trooper Mary Brown (Mary Husic at the time of the crash) responded to the scene shortly before 11 pm. (R. 140-41). She spoke to the Defendant at the scene. (R. 141). The victim was pronounced dead at 11:20 pm. (R. 141). That was the point when she realized that a blood draw was needed. (R. 141). It was not her responsibility to obtain a warrant pursuant to FHP policy, that responsibility rests with the corporal. (R. 141-42). The corporal is also responsible for taking measurements, taking photos, and talking with witnesses. (R. 142). Normally there are two corporals on the scene, but at this scene there was only one, as there was another fatality that night. (R. 142). Trooper Brown took the Defendant back to her patrol car, where she could smell a strong odor of alcohol when he was talking. (R. 142). The Defendant was read implied consent and was asked to voluntarily consent to give his blood, and he refused. (R. 130, 143). He was then told that they would forcibly take his blood, as allowed under state statute, so the Defendant agreed to comply with the blood draw. (R. 143). The blood draw took place at 2

approximately 11:30. (R. 145). Trooper Brown handed the sealed blood to the trooper doing the traffic crash investigation and left the scene to respond to another DUI call. (R. 145-46). There happened to be two fatal accidents that evening, so Corporal Neutzling was the only homicide investigator at the scene of this accident; usually two investigators are present. (R. 120, 125). At a scene like this, there is always an urgency to get the road back open, both for the use of the public and for officer safety. (R. 125). Because she was the only homicide investigator, Neutzling had to make sure she got all the information needed before the road was opened again. (R. 125). The road had to be shut down until she was done with the investigation. (R. 130). Corporal Neutzling testified that obtaining a warrant for a blood draw would prolong the duration of the investigation. (R. 125). The warrant had to be typed up, and then FHP dispatch had to be contacted to contact the sheriff s office to find out who the on-call judge was, and then she would have to get to the judge s residence in the middle of the night. (R. 125-26). The investigation of the accident scene took two to three hours, so Neutzling left the scene at approximately 2 or 3 am. The homicide unit is not called until a fatality is confirmed, which happened here at 11:20 pm. (R. 127-28). Getting the warrant at 2 am would have been three hours after the crash. (R. 127). When Neutzling arrived at the scene, the driver of both vehicles involved had been identified, the deceased victim had been 3

identified, the possible involvement of intoxication was known, and the fire department was there attending to the medical needs of those involved. (R. 129, 139). Other law enforcement officers were interviewing the witnesses. (R. 130). There were a lot of calls that night, so some officers left to respond to those after the scene was contained. (R. 134). As the homicide investigator, Neutzling would be the one who was required to type up the warrant. (R. 135-37). Given the time frame, it was not feasible for her to do that. (R. 135-36). Warrants are not just cut and pasted from existing cases, and she would need to make sure it was correctly written before she would wake up a judge at 2 am. (R. 138). FHP does not have template warrants. (R. 138). Trooper Brown testified that she did not obtain a warrant for the blood draw because that was not the procedure at the time, and because they did not have enough people available to do a warrant at that time, they had to type it up (it could not be done electronically), take it to the on-call judge, then come back to the scene to do the arrest. (R. 147-48). This was simply not feasible that night. (R. 148). Defense counsel stated that he was not challenging that the officers had probable cause for a blood draw, but was only challenging the exigency. (R. 122, 171-72). The trial court found that a warrant was required, there was no exigency supporting the 4

blood draw without a warrant, and the good faith exception to the warrant requirement did not apply. (R. 168-73). In their arguments at the suppression hearing, the parties and the court noted that Judge Murphy had just addressed a similar argument. (R. 150-66). That case is pending before this Court in State v. Liles, case number 5D14-1654. 5

SUMMARY OF ARGUMENT The trial court erred in granting the Defendant s motion to suppress. The blood draw was proper under Florida s implied consent statute, which remains a valid means of securing blood even after the Supreme Court s decision in McNeely. Even if the statute was invalid, the officers acted in good faith reliance on the statute and Florida case law. Further, even if the officers could not rely on this law, the search was reasonable, there were sufficient exigencies justifying the search without a warrant, and the search was a valid search incident to lawful arrest. 6

ARGUMENT THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT S MOTION TO SUPPRESS. A motion to suppress involves mixed questions of law and fact. See, e.g., Seibert v. State, 923 So. 2d 460, 468 (Fla.), cert. denied, 549 U.S. 893 (2006); Dewberry v. State, 905 So. 2d 963, 965 (Fla. 5th DCA 2005). In reviewing the trial court s ruling on such a motion, an appellate court must determine whether competent, substantial evidence supports the lower court s factual findings, but the trial court's application of the law to the facts is reviewed de novo. As the Florida Supreme Court has explained: The deference that appellate courts afford findings of fact based on competent, substantial evidence is an important principle of appellate review. In many instances, the trial court is in a superior position to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses. When sitting as the trier of fact, the trial judge has the superior vantage point to see and hear the witnesses and judge their credibility. Appellate courts do not have this same opportunity. Despite this deference to a trial court's findings of fact, the appellate court's obligation to independently review mixed questions of fact and law of constitutional magnitude is also an extremely important appellate principle. This obligation stems from the appellate court's responsibilities to ensure that the law is applied uniformly in decisions based on similar facts. Connor v. State, 803 So. 2d 598, 607-608 (Fla. 2001) (emphasis added) (quotations and citations omitted), cert. denied, 535 U.S. 1103 (2002). Here, the State does not dispute that the Defendant did not voluntarily consent to the blood draw, and instead the draw was 7

ordered by law enforcement acting pursuant to section 316.1933, Florida Statutes. The State submits, however, that the trial court's order is legally erroneous. Specifically, the court erred in finding that section 316.1933 is unconstitutional and that the trooper could not in good faith rely on that statute, and, if the Court disagrees with those arguments, that the trial court erred in finding that the search was not justified as reasonable and exigent and a lawful search incident to arrest. The Implied Consent Statute In determining the validity of a statute, courts are bound by the premise that all doubts must be resolved in favor of the statute s constitutionality. See, e.g., State v. Stalder, 630 So. 2d 1072, 1076 (Fla. 1994). Moreover, if there is any way to construe the statute in a constitutional manner, it must be construed in such a way, as long as such construction is consistent with legislative intent and does not effectively rewrite the statute. Id. follows: The statute at issue here provides in relevant part as If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a test of the 8

person s blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893. The law enforcement officer may use reasonable force if necessary to require such person to submit to the administration of the blood test. The blood test shall be performed in a reasonable manner. Notwithstanding s. 316.1932, the testing required by this paragraph need not be incidental to a lawful arrest of the person. 316.1933(1)(a), Fla. Stat. (emphasis added). The trial court found that this statute could no longer justify a blood draw after the Supreme Court s decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013). This conclusion construes McNeely much too broadly and is contrary to long-standing Florida law. Williams This Court is the first in Florida to address the ramifications of the McNeely decision. In State v. Williams, 2015 WL 3511222 (Fla. 5 th DCA June 5, 2015), this Court held that a defendant could be criminally punished for failing to submit to a breath test as required by the implied consent statute. In so holding, this Court concluded that the search involved in these cases (a test of breath after an arrest for driving under the influence of alcohol) is reasonable. Id. at *8-9. The Williams opinion also considered and rejected a number of other arguments regarding the effect of McNeely on DUI cases arguments that are relevant to the validity of a blood draw in more serious cases, such as this. The State submits that while the 9

holding in Williams is ultimately correct, the other discussions in Williams are not. To the extent these discussions are deemed to be binding on the panel considering the instant case, rather than dicta not essential to the Court s holding in Williams, the State submits that the actual ramifications of the McNeely decision will ultimately need to be addressed by this Court en banc. McNeely s Facts & Holding In McNeely, the defendant was stopped shortly after 2 am, after an officer observed him speeding and his vehicle repeatedly crossed the center line. 133 S.Ct. at 1556. Based on the defendant s intoxicated appearance and poor performance on fieldsobriety tests, the officer began to transport him to the police station, then changed his mind and took the defendant to a nearby hospital for blood testing when the defendant refused to provide a breath sample. Id. at 1557. The blood sample was drawn less than 30 minutes after the initial stop. Id. Nothing in the Supreme Court s opinion indicates that the defendant was involved in an accident of any sort, or that Missouri s implied consent law allowed the blood draw to take place notwithstanding the defendant s refusing consent. Id. at 1567. In fact, the opinion from the Missouri Supreme Court specifically states that the compelled blood draw exceeded the scope of 10

Missouri s implied consent law. State v. McNeely, 358 S.W.3d 65, 68 n.2 (Mo. 2012). 1 On certiorari review, the Supreme Court addressed the following narrow question: whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations. 133 S.Ct. at 1558. The Court held that there was no such per se exigency, and instead DUI cases, like all cases, need to be evaluated based on the totality of the circumstances. Id. Contrary to the conclusion of the court below, McNeely does not stand for the broad proposition that a warrant is required for 1 McNeely involved a blood draw in a routine DUI case, with no accident or harm. McNeely, 358 S.W. 3d at 67-68. Under the Missouri implied consent statute, a person can refuse a blood test under these circumstances, although there are consequences for doing so. Mo. Rev. Stat. 577.041. A forced blood draw is not permissible under the statute in these circumstances. The prosecution in that case contended that an amendment to the implied consent statute removed any barrier to such testing even when the suspect refused, and allowed a warrantless search under a broad reading of Schmerber. The Missouri Supreme Court, and ultimately the United States Supreme Court, disagreed with that argument. McNeely, 358 S.W.3d at 68 n.2. Indeed, under Florida law, the defendant s blood could not have been drawn under these circumstances either, as a defendant retains the right to refuse such testing under the implied consent statute in the absence of death or bodily harm although there are certainly penalties for such a refusal. 316.1932, Fla. Stat. 11

every blood draw. 2 Instead, the Court simply recognized that the totality of the circumstances must be considered in determining whether the circumstances are sufficiently exigent to justify acting without a warrant. Id. at 1563. Implied Consent after McNeely The trial court s order in this case should be reversed because the blood was properly drawn under Florida s implied consent law, which remains valid even after McNeely. In Schmerber v. California, 384 U.S. 757 (1966), the United States Supreme Court addressed whether a blood draw was a permissible search in a DUI case. After concluding that a blood draw was a search, the Court went on to hold that blood samples were permissibly obtained without a warrant where the defendant was involved in an accident causing injury to himself and his passenger and there was probable cause to believe he had been drinking and driving. Id. at 758 n.2. Over 45 years passed between the decision in Schmerber and the Court revisiting this decision in McNeely. During this time, implied consent laws were passed across the country in response to the broad decision in Schmerber, giving individuals greater protections by setting up specific circumstances under which a 2 While not directly relevant here, as the instant case involves a felony, the State notes that in misdemeanor cases in Florida, it is not possible to lawfully obtain a warrant to search for blood, breath, or urine. State v. Geiss, 70 So. 3d 642 (Fla. 5 th DCA 2011), rev. dismissed, 88 So. 3d 111 (Fla. 2012). 12

person suspected of driving under the influence of alcohol can be required to submit to breath or blood searches. These laws further required drivers to consent to such searches under those delineated circumstances if they chose to accept the privilege of driving. The United States Supreme Court has yet to accept a single case challenging such implied consent statutes, as state courts across the country found these statutes to be constitutional - including here in Florida. See, e.g., State v. Langsford, 816 So. 2d 136, 139 (Fla. 4 th DCA 2001); State v. Slaney, 653 So. 2d 422 (Fla. 3d DCA 1995); Jackson v. State, 456 So. 2d 916 (Fla. 1 st DCA 1984). Not until faced with a blood draw taken outside the scope of the state s implied consent law did the United States Supreme Court again consider the propriety of such a search. 3 In light of the actual factual situation before the Court, then, McNeely did not actually consider the propriety of implied consent statutes, let alone conclude (sub silentio, at that) that these laws are no longer valid. Such an issue was simply not before the Court. At most, McNeely could be read to hint at the future of implied consent statutes after its decision, and there is no indication of any disapproval of these statutes. Instead, the Supreme Court specifically recognized that its decision would not 3 Notably, none of the cases cited by the Court as examples of conflicting decisions on the per se exigency rule involved blood draws under those states implied consent statutes either. McNeely, 133 S.Ct. at 1558 n.2. 13

eviscerate the states ability to combat the scourge of drunk driving, as Missouri contended, because states retain the ability to secure blood alcohol evidence by acting pursuant to their implied consent laws: As an initial matter, States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 states have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. McNeely, 133 S.Ct. at 1566 (emphasis added). This is exactly how the blood was acquired here pursuant to Florida s implied consent law a legal tool to acquire such evidence. Florida courts have repeatedly upheld the constitutionality of Florida s implied consent law against Fourth Amendment challenges, as the implied consent law actually provides greater protection to citizens than that required by the Constitution. Contrary to this Court s discussion in Williams, 2015 WL 3511222 at *6, McNeely in no way changed this long-standing law. As this Court has recognized, searches conducted pursuant to a warrant and searches conducted under the implied consent law are completely different, subject to different requirements and different standards of admissibility. See, e.g., Geiss, 70 So. 3d at 646-47. The Defendant stipulated that the State met its burden under the implied consent law here. That should be the end of the inquiry, as McNeely in no way invalidated implied consent laws, but 14

instead noted that these laws provide an additional legal means to secure blood alcohol evidence. Under Florida s implied consent law, a person who accepts the privilege of operating a motor vehicle is deemed to have consented to tests of his blood alcohol level. 316.1932(1), Fla. Stat. By choosing to exercise the privilege to drive on Florida s roadways, the Defendant agreed to give to law enforcement the right to take his blood under certain limited circumstances, including as delineated in section 316.1933. The Defendant consented to the blood draw when he got behind the wheel of his car that night, and he had no right to rescind that legal consent, notwithstanding his lack of cooperation when faced with the consequences of his actions. Cf. State v. Young, 483 So. 2d 31 (Fla. 5 th DCA 1985) (implied consent gives no legal right to refuse to be tested, except as choice, with attendant consequences, is provided in statute itself), rev. dismissed, 517 So. 2d 691 (Fla. 1988); State v. Yong Shik Won, 332 P.3d 661, 680-82 (Haw. Ct. App.) (implied consent law is exception to warrant requirement, survives McNeely), cert. granted, 2014 WL 2881259 (Haw. June 24, 2014); Rowley v. Commonwealth, 629 S.E.2d 188, 191 (Va. Ct. App. 2006) (consent under implied consent law is not qualified or conditional and is valid consent under Fourth Amendment; To allow it to be unilaterally withdrawn would virtually nullify the Implied Consent Law. ); Burnett v. Municipality of Anchorage, 634 F.Supp. 1029, 1037-38 (D. Alaska) 15

(driver consents to testing under law by operating a car; consent cannot be legally recanted or withdrawn after being lawfully arrested for driving while intoxicated), aff d, 806 F.2d 1447 (9 th Cir. 1986). See also State v. Nickell, 21 Fla. L. Wkly. Supp. 933a (Volusia Cty. May 22, 2014) (denying motion to dismiss charge of refusal to submit to breath testing, rejecting McNeely challenge to implied consent); State v. Caporuscio, 21 Fla. L. Wkly. Supp. 930b (Volusia Cty. May 22, 2014) (same). In short, the Defendant s blood was taken under Florida s implied consent law, a legal tool to acquire such evidence, and McNeely does not apply here. Exigent Circumstances after McNeely Even if the blood draw was not proper under the implied consent law that is, even if this Court is prepared to specifically find this statute invalid, the trial court s order should still be reversed, given the totality of the circumstances. That alcohol dissipates in the body, negatively affecting the probative value of the results if there is a significant delay in testing the blood, is still an important factor to be considered in determining whether a warrant is required. McNeely, 133 S.Ct. at 1561. However, it is not in and of itself sufficient to justify acting without a warrant in an ordinary DUI case, such as that before the Court in McNeely. 16

The instant case is no ordinary DUI case, but instead is a DUI with a fatality factually analogous to the situation in the Supreme Court s decision in Schmerber, 384 U.S. at 758 n.2. The Court in McNeely specifically recognized that the additional special facts demonstrated an exigency in Schmerber specifically, a delay was incurred because the officer needed to investigate the accident and transport the injured suspect to the hospital, evidencing that there was no time to seek out a magistrate and secure a warrant before the evidence of the alcohol content was lost through natural bodily functions. 133 S.Ct. at 1560. Contrary to the lower court s decision in the instant case, the United States Supreme Court had no doubt that obtaining a warrant would be impractical in such circumstances. Id. at 1561. Given the dissipation issues, the seriousness of the crime, and the time necessarily required for investigation, a warrant was simply not practical. See also State v. Johnson, 744 N.W.2d 340, 344-45 (Iowa 2008); State v. Rodriguez, 156 P.3d 771, 781 (Utah 2007). Here, as in Schmerber, this was no simple DUI, but a fatal accident, requiring investigation of its causes and connection to the Defendant, and resulting in delay before the Defendant s blood could be drawn. As the troopers involved explained at the hearing, in 2012 the process for getting a warrant required the homicide investigator to manually prepare a warrant, contact dispatch to 17

find out which judge was on duty, and then actually go out to that judge s house in the middle of the night. While defense counsel portrayed a warrant affidavit as a simple matter of stringing together a few pro forma sentences, the experienced homicide investigator explained that proper affidavits include details of the actual investigation and are not simply a matter of filling in templates. Especially when it would require a judge to be roused at 2 am, the homicide investigator would not simply throw together an affidavit without conducting a proper investigation first. Here, in light of the time of the accident, the complexities involved in securing a warrant, and the fact that there were multiple accidents that evening which stretched the resources of law enforcement, it was simply not feasible to obtain a warrant in a timely manner, before the natural dissipation of alcohol in the Defendant s blood would render such a warrant meaningless. See McNeely, 133 S.Ct. at 1563 (expressly recognizing that exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process ). The troopers involved here specifically testified that they did not have time to secure a warrant, and this Court must evaluate this judgment call from the perspective of the reasonable officer on the scene, familiar with the mechanics and time involved in the warrant process in their jurisdiction. Id. at 1564 n.7. There 18

was no testimony presented below in support of the Defendant s claim that a warrant could have been simply and timely procured under these circumstances. The State submits that the Schmerber rule permitting blood draws due to the exigencies involved in cases such as this remains the law even after McNeely especially where, as here, the totality of the circumstances demonstrates that obtaining a warrant in a timely fashion was simply not feasible, and a blood draw was needed before the evidence was dissipated. Reasonableness after McNeely and Williams Even if not justified under the implied consent law or under the exigencies exception to the warrant requirement, the blood draw was still proper here. As this Court expressly recognized in Williams, the Fourth Amendment does not preclude all searches, but only those searches that are not reasonable, weighing legitimate government interests against the degree of the search s intrusion. Williams, 2015 WL 3511222 at *8. Applying that test here, the search was reasonable. First, the State unquestionably has a significant and legitimate interest in combating drunk driving. As the McNeely Court itself recognized, [n]o one can seriously dispute the magnitude of the drunken driving problem or the State s interest in eradicating it, as drunk driving continues to exact a terrible toll on our society. McNeely, 133 So. Ct. at 1565 (quotation 19

omitted). This case is a classic example of such a terrible toll, where the victim s life was taken. Weighed against this significant government interest is a lesser individual privacy interest. Those who choose to exercise their privilege (not their right) to drive in Florida have a reduced expectation of privacy in light of the clear statutory language stating that by doing so they have consented to a search of their blood under certain limited circumstances including the circumstances present here. In short, drivers are put on express notice that they can expect some limited police intrusion under these specific circumstances, and only under the circumstances delineated in the statute. Further, as the Supreme Court expressly recognized in Schmerber, while a blood draw is of course a search, its level of intrusion is not untenable under these circumstances: Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. Such tests are a commonplace in these days of periodic physical examination and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain. Schmerber, 384 U.S. at 771 (citation and footnotes omitted). Admittedly, a blood draw is more intrusive than a breath test, which was found to be reasonable by this Court in Williams, 2015 WL 3511222 at *8-9. However, a blood draw is allowed under the implied consent statute only in certain limited circumstances 20

where there is probable cause to believe a defendant driving under the influence of alcohol caused a death or serious bodily injury. In light of this limitation, any increased intrusiveness is more than counter-balanced by the State s greater interest, not in a routine DUI, but in a DUI involving the death of an innocent victim where that which the law is designed to prevent has actually come to fruition. In light of the limited circumstances under which a blood draw is permitted, the State s unquestioned interest in protecting the public under those circumstances, and the express statutory notice given to drivers who choose to drink and drive in Florida, enforcing the implied consent law is reasonable. As the United States Supreme Court has recognized: [W]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable. Those circumstances diminish the need for a warrant, either because the public interest is such that neither a warrant nor probable cause is required, or because an individual is already on notice, for instance because of his employment, or the conditions of his release from government custody, that some reasonable police intrusion on his privacy is to be expected. Maryland v. King, 133 S.Ct. 1958, 1969 (2013) (taking DNA sample of everyone arrested for violent felony was reasonable under Fourth Amendment, given compelling government interest, probable cause supporting custody, and negligible bodily intrusion). 21

This Court should apply its decision in Williams to blood draws under the implied consent statute as well, where the intrusion is relatively minimal, the driver has already agreed to the search, probable cause is a prerequisite to any search, and where such a search is undertaken only in cases involving a fatality or serious bodily injury. See also Beylund v. Levi, 859 N.W.2d 403, 412-14 (N.D.) (blood test required under implied consent law was reasonable), petition for cert., 83 U.S. Law Wkly. 3935 (Jun 22, 2015); State v. Birchfield, 858 N.W.2d 302, 309-10 (N.D.) (penalty for refusing breath test compelled by implied consent statute was reasonable), petition for cert. filed, 83 U.S. Law Wkly. 3916 (Jun 12, 2015); Yong Shik Won, 332 P.3d at 679-82. Search Incident to a Lawful Arrest In addition to the grounds discussed above, this Court may also conclude that the blood draw was valid as a search incident to a lawful arrest, which allows a search of an arrestee s person in order to preserve evidence. See generally Arizona v. Gant, 556 U.S. 332, 335 (2009). Admittedly, this argument, too was rejected in Williams, 2015 WL 3511222 at *6-7, but the State asks this Court to reconsider that rejection here. A number of federal and state court have upheld the admission of breath tests under the search incident to arrest exception. See, e.g., State v. Bernard, 859 N.W.2d 762, 766-68 (Minn.), petition for cert. filed, 83 U.S. Law Wkly. 3916 (Jun 15, 2015); United States v. Reid, 929 F. 2d 990, 994 (4th Cir.1991); Burnett 22

v. Municipality of Anchorage, 806 F.2d 1447, 1450 (9th Cir. 1986) ( It is clear then that the breathalyzer examination in question is an appropriate and reasonable search incident to arrest which appellants have no constitutional right to refuse. ); Byrd v. Clark, 783 F.2d 1002, 1005 (11th Cir.1986); Wing v. State, 268 P.3d 1105, 1110 (Alaska Ct. App. 2012); State v. Dowdy, 332 S.W.3d 868, 870 (Mo. Ct. App. 2011); State v. Hill, 2009 WL 1485026, at *5 (Ohio Ct. App. May 22, 2009); Commonwealth, Dep't of Transp. v. McFarren, 525 A.2d 1185, 1188 (Pa. 1987). While none of these cases involve a blood draw, the State submits that the same theory would apply to blood once a person is arrested, their right to privacy is significantly diminished, and they are subject to a search to prevent the destruction of evidence. While the arrestee in these cases is not actively destroying evidence, his body itself is passively destroying it, and this is a distinction without a difference. Cf. State v. Payano-Roman, 714 N.W.2d 548, 559-61 (Wis. 2006) (administering laxative to defendant who swallowed bag filled with heroin was reasonable search incident to arrest; officers were justified in seeking to preserve evidence of crime), cert. denied, 549 U.S. 935 (2006). Good Faith Finally, even if McNeely somehow invalidates the statutory implied consent scheme, despite its express approval of implied consent laws, suppression should not have been ordered here. 23

The purpose of the exclusionary rule is to deter unlawful police action. Where, then, an officer acts in good faith in executing a search, the fruits of that search are not subject to exclusion. As the Unites States Supreme Court has explained, the exclusionary rule has no deterrent effect when the offending officers acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment. United States v. Leon, 468 U.S. 897, 916-19 (1984); State v. Watt, 946 So. 2d 108, 110 (Fla. 5th DCA 2007) (rejecting application of good faith exception requires a conclusion that an objectively reasonable police officer would have a better understanding of the law of... probable cause than did the trial judge who issued the warrant ), rev. denied, 51 So. 3d 1156 (Fla. 2010); Butler v. State, 801 So. 2d 992, 993 (Fla. 2d DCA 2001) (DNA evidence from blood sample was admissible under good faith exception to exclusionary rule, even though statute which required DNA testing for certain offenders did not apply to defendant at time blood was drawn pursuant to search warrant), cert. denied, 537 U.S. 1055 (2002). Here, the blood draw took place in compliance with a specific Florida statute governing such matters, section 316.1933. As discussed above, Fourth Amendment challenges to this statute have been repeatedly rejected in Florida. Further, blood draws under these circumstances have been deemed proper for almost 50 years, since Schmerber was decided. Even if McNeely is somehow read as 24

invalidating such blood draws, McNeely was decided well after the blood draw took place here. Under these circumstances, the officers involved undoubtedly acted in objectively reasonable reliance on binding law both statutory and case law. The good faith exception applies here, and the blood draw should not have been suppressed. Cf. Davis v. United States, 131 S.Ct. 2419, 2429 (2011) (where automobile search complied with law at the time it was executed, before such a search was found to be unconstitutional, good faith exception applied; under such circumstances, all that exclusion would deter in this case is conscientious police work ). See also Brown v. State, 24 So. 3d 671, 681 (Fla. 5 th DCA 2009) ( To apply the exclusionary rule in this case cannot possibly deter police because they did exactly what they were trained to do based on what we (judges) told them was appropriate. ), rev. denied, 39 So. 3d 1264 (Fla. 2010); State v. Finnegan, 21 Fla. L. Wkly. Supp. 329a (19 th Cir. Oct. 28, 2013) (good faith exception should apply in pre-mcneely cases as long as police were following rule of law as announced in cases and implied consent scheme; officer was required to draw blood under section 316.1933; officer would have had no reason to believe that a statute enacted decades earlier and upheld by Florida s appellate courts would subsequently be invalidated by a decision of the United States Supreme Court ) (emphasis in original). 25

CONCLUSION Based on the arguments and authorities presented herein, Appellant respectfully requests this honorable Court reverse the trial court s order granting the Defendant s motion to suppress. Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL /s/ Kristen L. Davenport KRISTEN L. DAVENPORT ASSISTANT ATTORNEY GENERAL Fla. Bar #909130 444 Seabreeze Boulevard Fifth Floor Daytona Beach, FL 32118 (386) 238-4990 COUNSEL FOR APPELLANT DESIGNATION OF EMAIL ADDRESS Undersigned counsel can be served at the following email address: crimappdab@myfloridalegal.com 26

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above Initial Brief has been furnished to Anne Moorman Reeves, counsel for Appellee, 444 Seabreeze Blvd., Ste. 210, Daytona Beach, Florida 32118, by email to appellate.efile@pd7.org and moormanbell.anne@pd7.org, this 27th day of July, 2015. CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that this brief was typed using 12 point Courier New, a font that is not proportionately spaced. /s/ Kristen L. Davenport Kristen L. Davenport Counsel for Appellant 27