State of Minnesota v. Jonathan Lawrence Markle ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2361
State of Minnesota,
Respondent,
vs.
Jonathan Lawrence Markle,
Appellant
Filed November 3, 2014
Affirmed
Worke, Judge
Concurring specially, Cleary, Chief Judge
Hennepin County District Court
File No. 27-CR-13-4020
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Paul Engh, Minneapolis, Minnesota; and
Joseph S. Friedberg, Minneapolis, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Cleary, Chief Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant argues that the district court erred in denying his motion to suppress the
results of a post-accident blood test, because no exigent circumstance existed which
would provide an exception to the Fourth Amendment’s warrant requirement. We affirm.
FACTS
On January 18, 2013, appellant Jonathan Lawrence Markle went to a restaurant on
Lake Minnetonka with his wife and two young daughters. Markle consumed alcohol
while there. While driving home, Markle decided to take a shortcut home across the
frozen lake, though his wife cautioned against doing so. Under the bridge connecting
Priest and Halsted Bays, the ice broke and the vehicle sank.
Witnesses called 911 at about 5:08 p.m. After Markle’s wife and older daughter
were rescued from the water, Markle remained submerged while attempting to rescue his
younger infant daughter from the submerged vehicle. Rescuers arrived a few minutes
later and immediately commenced efforts to rescue the infant. Among the rescuers was
Hennepin County Sherriff’s Deputy Adam Moore, who would initiate the investigation
following rescue efforts. The infant was recovered from the water at 5:24 p.m. and
rushed to the hospital. Efforts to save her failed and she died three days later.
While waiting for ambulances, Markle admitted to Orono Police Officer Kyle
Russeth that he had consumed alcohol and that he was the driver of the vehicle. Officer
Russeth noted that although Markle smelled of alcohol, he did not exhibit other common
signs of intoxication, such as slurred speech or bloodshot eyes. Officer Russeth later
relayed this information to Deputy Moore.
The ambulance carrying Markle left the scene at 5:32 p.m. and arrived at the
Ridgeview Medical Center in Waconia at 5:45 p.m. The ambulance carried Markle from
Hennepin County to Carver County. Deputy Moore drove to the hospital in his squad
car, intending to commence his investigation. Upon arrival, Deputy Moore notified
hospital staff of his presence, but he was asked to wait for doctor approval before
2
initiating contact with Markle. Deputy Moore waited 20 to 30 minutes before receiving
authorization from Markle’s treating doctor at approximately 6:30 p.m. Markle admitted
to Deputy Moore that he had two beers, and that he drank the last just before leaving the
restaurant.
After about five minutes transpired, Deputy Moore asked Markle to take a
preliminary breath test; Markle declined. Deputy Moore then read Markle the implied
consent advisory, including the portion of the advisory regarding accidents involving
death or injury, which he does not normally do. Deputy Moore said: “Because I also
have probable cause to believe you have violated the criminal vehicular homicide or
injury laws, a test will be taken with or without your consent.” Markle asked to speak to
his attorney, and did so for about 20 minutes. At 6:57 p.m. Deputy Moore again asked
Markle if he would take the blood test. Markle replied, “I don’t have a choice, right?”
Deputy Moore said, “Correct,” and the test was administered without a warrant. The test
indicated a blood alcohol content (BAC) of .13.
Markle was charged with criminal vehicular homicide. Markle moved to suppress
the blood test results, arguing that no exigency justified the warrantless search. The
district court denied Markle’s motion, and the matter proceeded on stipulated facts. See
Minn. R. Crim. P. 26.01, subd. 4 (preserving pretrial issue for appellate review). One of
the facts stipulated was that Markle did not consent to the blood test. He was convicted,
and this appeal follows.
DECISION
Markle argues that a warrant was required before administering the blood test
because no exigent circumstance existed that would provide an exception to the Fourth
3
Amendment’s warrant requirement. Consequently, he contends, the test results must be
suppressed and his conviction reversed.
When reviewing a pretrial ruling on the suppression of evidence in which facts are
not in dispute and the district court’s decision is a question of law, the appellate court
may independently review the facts and determine as a matter of law if suppression is
required. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).
Under the Fourth Amendment, a warrantless search is reasonable only if it falls
within a recognized exception. Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013). The
presence of exigent circumstances is a recognized exception to the warrant requirement.
Id. “‘[E]xigency in the drunk-driving context must be determined case by case based on
the totality of the circumstances.’” State v. Stavish, 852 N.W.2d 906, 908 (Minn. App.
2014) (brackets omitted) (quoting McNeely, 133 S. Ct. at 1556). The natural dissipation
of alcohol in the bloodstream, standing alone, is not an exigent circumstance. McNeely,
133 S. Ct. at 1561. But such dissipation is one factor considered in a determination of
exigency. Id. One “important factor” that contributes to an exigency is “the gravity of
the underlying offense for which the arrest is being made.” Stavish, 852 N.W.2d at 909.
Other relevant factors include the suspect’s need for medical care, transport across county
lines, and time pressure created by the need to take action within two hours of the time of
driving. Id. at 908-09 (citing in support of time constraints Minn. Stat. § 169A.20 subd.
1(5) (2012) (stating that a person is guilty of driving while impaired (DWI) when his
BAC is 0.08 or more as measured within two hours of driving)).
This court’s recent opinion in State v. Stavish largely controls this case. In
Stavish, emergency personnel responded to a single-vehicle accident in which one of the
4
occupants of the vehicle had died. Id. at 907. The driver, Stavish, needed medical care
and was transported by ambulance to a hospital in a neighboring county. Id. A state
patrol sergeant was instructed to take a blood sample and drove to the hospital where
Stavish was being treated. Id. The sergeant noted that Stavish “smelled of alcohol and
determined that there was probable cause to suspect that [Stavish] had committed
criminal vehicular homicide.” Id. Stavish moved to suppress the blood test results
following McNeely, and the district court granted the motion. Id.
This court reversed. Id. at 909. The court concluded that an exigency existed
because Stavish needed medical treatment, was transported across county lines, and
because of the gravity of the underlying offense, “a probable criminal vehicular homicide
charge, not merely a DWI charge.” Id. The court noted that more than 50 minutes had
passed between the time Stavish had been driving and his blood drawn, which was
concerning given Minnesota statutory timeframes. Id. at 908-09.
All the aforementioned factors are present here; the delay in taking the blood draw
was even longer in this case. 911 calls were placed at 5:08 p.m. Due to rescue efforts
and the need for medical attention due to hypothermia, Deputy Moore did not make
contact with Markle until about 90 minutes after Markle had been driving. Deputy
Moore was prohibited from doing so earlier due to the need to obtain approval from
Markle’s treating doctor. Deputy Moore had only second-hand information about Markle
prior to that time, and by the time Markle had consulted with his attorney nearly two
hours had elapsed. The blood test was administered at 6:57 p.m., nearly two hours after
the accident.
5
Such delays are important for two reasons. First, as Stavish recognized, the blood
test evidence was “essential to a probable criminal vehicular homicide charge, not merely
a DWI charge.” Id. at 909; see Minn. Stat. § 609.21, subd. 1(4) (2012) (requiring BAC
“of 0.08 or more, as measured within two hours of the time of driving” to support a
charge of criminal vehicular homicide). Second, eight of nine justices in McNeely
recognized that “a significant delay in testing will negatively affect the probative value of
[blood test] results.” 133 S. Ct. at 1561; id. at 1571 n.1 (Roberts, C.J., concurring in part
and dissenting in part) (“When experts have worked backwards to identify a defendant’s
BAC at the time he was driving, defense attorneys have objected to that evidence, courts
have at times rejected it, and juries may be suspicious of it.”).
Certainly, the factual fit between Stavish and this case is not perfect. In Stavish,
there was the possibility that Stavish could have been airlifted to another medical facility,
increasing the need to take a blood test without delay. 852 N.W.2d at 907. But this
divergent fact is outweighed by the similarities between Stavish and this case.
In concluding that Stavish is largely precedential here, we note that it is best
practice for law enforcement to obtain a warrant whenever practicable. A determination
of exigency in cases such as this is “determined case by case based on the totality of the
circumstances.’” Id. at 908 (quoting McNeely, 133 S. Ct. at 1556). Uncertainty of
outcomes and lengthy court proceedings may be avoided with the signed approval, prior
to administration of a chemical test, of a detached, neutral magistrate. But cases of
accidents, particularly those involving death or serious injury, are not routine. See
McNeely, 133 S. Ct. at 1568 (describing the facts presented as “unquestionably a routine
6
DWI case”). This case demonstrates the need for law enforcement to be able to proceed
without a warrant in appropriate circumstances.
The district court correctly concluded that the combination of factors here created
an exigency, and therefore a warrant for Markle’s blood test was not required.
Affirmed.
7
CLEARY, Chief Judge (concurring specially)
I agree with the majority that there was not enough time to obtain a warrant given
the exigent circumstances found in this case, specifically the rescue efforts involving the
submerged vehicle, the transport across county lines, and appellant’s subsequent medical
treatment. I write a concurring opinion only to express my concern that law enforcement
should not be encouraged to rely on the exigent circumstances exception to administer
warrantless blood tests except in limited situations, and also to express my belief that
when relying on the gravity of the offense as an exigency, it is particularly critical that
law enforcement also respect constitutional protections surrounding the individual who
faces prosecution for that alleged grave offense.
In my view, the majority’s suggestion to law enforcement that “it is best practice
for law enforcement to obtain a warrant whenever practicable” is insufficient. The
message to law enforcement should be that a warrant is always required under the Fourth
Amendment, except in emergency situations where exigent circumstances exist. See
Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (explaining that search warrants are
required for blood tests “absent an emergency,” and a warrantless search is permissible
“when the exigencies of the situation make the needs of law enforcement so compelling
that a warrantless search is objectively reasonable under the Fourth Amendment”).
The majority emphasizes that the blood test in this case was necessary, as it was in
State v. Stavish, as evidence related “to a probable criminal vehicular homicide charge.”
State v. Stavish, 852 N.W.2d 906, 909 (Minn. App. 2014). In doing so, the majority
emphasizes the gravity of the offense as an exigency in this case, and in doing so
CS-1
suggests that consequently a suspect is entitled only to watered-down Fourth Amendment
protections when the crime is a serious offense, like criminal vehicular homicide. This
should not be the case. Instead, I believe that the gravity of the offense and potential
punishment require, in addition, that the suspect’s constitutional rights are highlighted as
well. See Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 1835 (1966) (“The
importance of informed, detached and deliberate determinations of the issue whether or
not to invade another’s body in search of evidence of guilt is indisputable and great.”).
Finally, given the advances of modern communication, it should be easier than
ever for officers to coordinate and apply for a warrant remotely. See Minn. R. Crim. P.
36.01-.08 (permitting search warrants to be requested orally by telephone and issued
remotely by judges). While obtaining a warrant was not practicable in this case, the
worst message we can send law enforcement is that the failure to obtain a warrant will be
overlooked as “not practicable” in most cases, particularly those cases involving alleged
serious offenses. If gravity of the offense is allowed to stand alone as an exigency, or is
overemphasized as an exigency, warrants will not be obtained when they are most
needed, for I agree with the majority that “[u]ncertainty of outcomes and lengthy court
proceedings may be avoided with the signed approval . . . of a detached, neutral
magistrate.”
CS-2