State v. Baird , 187 Wash. 2d 210 ( 2016 )

Gordon McCloud, J.

(dissenting)

¶51 I agree with the lead opinion that a law enforcement breath test constitutes a search. Lead opinion at 218. Both our court and the United States Supreme Court have clearly held that obtaining such biological samples for testing constitutes a search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 618, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (holding urine test constitutes a search); id. at 616-17 (stating that breath test “generally requires the production of alveolar or ‘deep lung’ breath,” “implicates similar concerns about bodily integrity,” and “should also be deemed a search”); see also State v. Garcia-Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (2010). The Supreme Court has even held that moving inanimate stereo equipment (a Bang & Olufsen turntable) “ ‘a few inches’ ” to locate a serial number constitutes a “search,” despite the fact that the officer was lawfully present in the apartment in which the stereo was located. Arizona v. Hicks, 480 U.S. 321, 324-35, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987); see also Grady v. North Carolina, _ U.S. _, 135 S. Ct. 1368, 1370-71, 191 L. Ed. 2d 459 (2015) (per curiam) (when a State attaches a satellite-based monitoring device to a person’s body without consent to track his or her movements, the State is conducting a “search” within the meaning of the Fourth Amendment to the federal constitution). It necessarily follows that forcing a person to move his or her lungs to obtain and capture alveolar, or “deep lung,” breath also constitutes a search.¹²

¶52 I also agree with the lead opinion and the concurrence that such a search must be authorized by a warrant, unless a specific exception to the warrant requirement applies. Lead opinion at 218; concurrence at 231-32; see Missouri v. McNeely, 569 U.S. 141, 147-48, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (plurality opinion); Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).

¶53 Further, I agree with the lead opinion that following the Supreme Court’s decision in McNeely, there is no per se exigency exception to the warrant requirement due to dissipation of alcohol in the body, regardless of whether the warrant requirement is triggered by a blood test search or a breath test search. Lead opinion at 220-21; see McNeely, 569 U.S. at 149-50, 165 (metabolization of alcohol (in that case, in the blood) “does not constitute an exigency in every case” sufficient to excuse warrant requirement).

¶54 The lead opinion, however, concludes that there is another, separate exception to the warrant requirement that applies here. Citing to the United States Supreme Court’s recent decision in Birchfield v. North Dakota, _ U.S. _, 136 S. Ct. 2160, 2186, 195 L. Ed. 2d 560 (2016), the lead opinion holds that the search incident to arrest exception to the warrant requirement allows police to conduct warrantless breath tests incident to all arrests for driving under the influence (DUI), regardless of the need for such a warrantless test in the particular case. Lead opinion at 221-22. And the lead opinion implies that Birchfield’s holding on this point is binding on our court: “The Supreme Court of the United States has recently decided this question for us.” Id. at 222.

¶55 The lead opinion is certainly correct that the Supreme Court is the final arbiter of whether a breath test fits within the search incident to arrest exception to the Fourth Amendment’s warrant clause. See U.S. Const. amend. IV. But this court, and this court alone, is the final arbiter of whether a breath test fits within the search incident to arrest exception to article I, section 7 of the Washington Constitution. And there can be no dispute that article I, section 7 of the Washington Constitution provides greater protection of individual rights—including article I, section 7’s right to privacy—than the Fourth Amendment. Hence, we need not adopt Birchfield’s newly discovered categorical exception to the Fourth Amendment’s warrant requirement for all breath tests here in Washington.

¶56 That leaves our court with the remaining question of whether the breath test and the refusal to perform such a test (in the two consolidated cases before us today) are admissible in evidence at a criminal trial in our state.

¶57 It is surprising that the lead opinion begins and ends its answer to this question with the Fourth Amendment. Our court has consistently recognized that “[a]rticle I, section 7 is more protective of individual privacy than the Fourth Amendment, and we turn to it first when both provisions are at issue.” State v. Byrd, 178 Wn.2d 611, 616, 310 P.3d 793 (2013) (citing State v. Bravo Ortega, 177 Wn.2d 116, 122, 297 P.3d 57 (2013); State v. Walker, 157 Wn.2d 307, 313, 138 P.3d 113 (2006); State v. Afana, 169 Wn.2d 169, 176, 233 P.3d 879 (2010)); see also City of Seattle v. Mesiani, 110 Wn.2d 454, 456, 755 P.2d 775 (1988) (analyzing article I, section 7 issues first, before Fourth Amendment issues). The lead opinion doesn’t even turn to article I, section 7 second.

¶58 I disagree. I think we should turn to article I, section 7 first. Under article I, section 7, “a warrantless search is per se unreasonable unless the State proves that one of the few ‘carefully drawn and jealously guarded exceptions’ [to the warrant requirement] applies.” Byrd, 178 Wn.2d at 616 (quoting Bravo Ortega, 177 Wn.2d at 122 (citing Afana, 169 Wn.2d at 176-77; State v. Patton, 167 Wn.2d 379, 386, 219 P.3d 651 (2009))). A search incident to arrest is one of those “ ‘carefully drawn and jealously guarded exceptions.’ ” Id. (quoting Bravo Ortega, 177 Wn.2d at 122). It certainly extends to a person and his or her effects. Id.

¶59 But we have never applied it to bodily contents, that is, to something inside the person, like breath or blood. Instead, we have applied this exception to things—like a purse (Byrd), a jacket (State v. Parker, 139 Wn.2d 486, 987 P.2d 73 (1999)), or a car (State v. Ringer, 100 Wn.2d 686, 697, 674 P.2d 1240 (1983), overruled by State v. Stroud, 106 Wn.2d 144, 151-52, 720 P.2d 436 (1986)).

¶60 Bodily constituents like the breath at issue in these cases are different. They are certainly shielded by the state constitutional right to privacy. In Garcia-Salgado, for example, we held that taking a cheek swab from an arrestee constitutes a search and that it cannot be accomplished without appropriate authority of law. 170 Wn.2d at 184. To be sure, we did not address the search incident to arrest exception there. But we made clear that we accord great respect to one’s bodily integrity. Id. at 186-88. In fact, we held that where law enforcement intrusion into “ ‘bodily integrity’ ” (as opposed to inanimate things) was concerned, we required a higher showing to justify the intrusion than is ordinarily required. Id. at 184 (quoting Skinner, 489 U.S. at 617). We held that the State must also show three things: “First, there must be a ‘clear indication’ that the desired evidence will be found if the search is performed. [Schmer-ber, 384 U.S.] at 770. Second, the method of searching must be reasonable. Id. at 771. Third, the search must be performed in a reasonable manner. Id. at 772.” Id. at 185.

¶61 For that reason, I do not think that the Washington Constitution allows us to apply the same analysis to the issue before our court that the Birchfield majority used when it applied the Fourth Amendment to the breath tests reviewed in that court. Instead, the Washington Constitution requires us to begin this analysis by weighing the importance of the privacy value at stake against the likelihood that the test will yield useful results and the reasonableness of the warrantless means. Here, our case law holds that the right to privacy in one’s biological samples and bodily integrity is an important value. But the State has not shown the reasonableness of adopting a categorical, blanket exception to the warrant requirement, as opposed to a case-by-case inquiry, is reasonable given that privacy interest. To be sure, the asserted justifications for intruding on the privacy right—here, safety and evidence preservation— are important. But the question for us is whether the State has shown that article I, section 7 permits us to allow those justifications to trump the privacy right on a categorical basis rather than with a case-by-case analysis (as would occur under the exigent circumstances exception, which might well apply in many DUI cases).

¶62 On this point, I find the Birchfield partial dissent— which is the only Birchfield opinion that really takes a close look at factual data concerning the time it generally takes to obtain a breath sample, the time it generally takes to obtain a warrant, and the minimal additional costs and inefficiencies implicated by procuring a warrant—more persuasive. It is also more in line with the analysis we adopted in Garcia-Salgado. The Birchfield partial dissent appropriately recognizes the need to address each proffered justification for the warrantless search to see if it is really supported by the facts, before deciding that there is a need to extend a categorical rule allowing breath searches incident to arrest for every suspected DUI driver—rather than sticking with the case-by-case exigent circumstances rule, which allows breath searches only when necessary. It does so and finds the proffered justifications wanting. Birch-field, 136 S. Ct. at 2195 (Sotomayor, J., concurring in part/dissenting in part).

¶63 The Washington Constitution demands just such a factual analysis. The Birchfield partial dissent, which is the only Birchfield opinion to conduct the sort of analysis that our state constitution requires, is thus the far more persuasive opinion on this point. I would therefore conclude that a breath test taken without a warrant or such a case-by-case exigency analysis is impermissible under article I, section 7.

¶64 Based on that conclusion, I would hold that the compelled breath test here was an unconstitutional war-rantless search and that admission of either the compelled breath test result or the breath test refusal is impermissible. The reason is that the United States Supreme Court has consistently held that people have a constitutional right to refuse to consent to such an unconstitutional warrantless search. Camara v. Mun. Court, 387 U.S. 523, 540, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). Our court has said the same thing. State v. Jones, 168 Wn.2d 713, 725, 230 P.3d 576 (2010).

¶65 The lead opinion therefore also errs in claiming that even if a warrantless breath test were unconstitutional, our implied consent law would still function as a waiver of any challenge to admissibility. Lead opinion at 226-27.

¶66 I disagree. In fact, the logic of Birchfield itself bars such a “waiver” claim analysis. In Birchfield, the Court explained the federal constitutional limit on the reach of implied consent laws: the Fourth Amendment permits laws that imply consent to warrantless breath tests and that render breath test results admissible because the Fourth Amendment makes such warrantless breath tests constitutional under the search incident to arrest exception, but the Fourth Amendment bars laws that imply consent to war-rantless blood draws and that render blood test results admissible because the Fourth Amendment makes such warrantless blood draws unconstitutional and exempt from the search incident to arrest exception. 136 S. Ct. at 2184. In other words, if the search is constitutional, there is no right to refuse. But if the search is unconstitutional, there is definitely a right to refuse—and neither the refusal nor the test can be admitted into evidence. The Supreme Court’s holding on this constitutional matter means that there can be no plausible implied consent waiver theory allowing admission of the fruits of an unconstitutional search or a constitutional refusal.

¶67 In fact, I have never before seen a court equate a criminal defendant’s relinquishment of a constitutional protection during the course of an investigation or arrest with a party’s decision to waive objection to admission of certain evidence during the course of an adversary judicial proceeding. The analogy is inapt. The lead opinion’s waiver analysis, with its citation to “waiv[ing] the opportunity to object to the admissibility of evidence” under “ER 103,” lead opinion at 227, is what we use to review a transcript to determine if a defendant’s failure to object to a discretionary evidentiary ruling precludes appellate review. We use a very different analysis to determine the legal effect of a criminal defendant’s relinquishment of a constitutional right to privacy when confronted by law enforcement before trial, before adversary proceedings, and before judicial supervision. In that latter situation, we ask, instead, whether that defendant voluntarily gave up the constitutional right under a totality of the circumstances test. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); see also State v. O’Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003) (“To show that valid consent to a search has been given, the prosecution must prove that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998). Whether consent was voluntary or instead the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. State v. Bustamante-Davila, 138 Wn.2d 964, 981, 983 P.2d 590 (1999) State v. Jensen, 44 Wn. App. 485, 488, 723 P.2d 443 (1986).”).

¶68 I therefore respectfully dissent from not just the lead opinion’s conclusion that breath tests of all suspected DUI drivers fall within the categorical search incident to arrest exception to article I, section 7’s privacy protection, I also dissent from its decision to swap implied consent rule waiver analysis for constitutional voluntariness analysis. In this case, Collette Adams did not relinquish her rights under the constitutional voluntariness standard or any standard, she asserted them; Dominic Baird did relinquish his rights, but it was in response to a law enforcement threat. Hence, our precedent dictates that the next question should be whether that relinquishment met the constitutional volun-tariness standard.

¶69 In this case, however, the State conceded that Baird did not relinquish this right voluntarily. As the State candidly acknowledged in its brief in our court, “If the district court is correct that the effect of McNeely is to effectively eliminate implied consent breath testing, admitting refusal evidence or imposing refusal penalties does violate the Fourth Amendment and article 1, section 7.” Br. of Pet’r at 37 (citing State v. Gauthier, 174 Wn. App. 257, 261, 267, 298 P.3d 126 (2013); Jones, 168 Wn.2d at 725; United States v. Prescott, 581 F.2d 1343, 1353 (9th Cir. 1978)). We are certainly not bound by this concession. But we are bound by the record. And in these cases, the State presented no facts at the evidentiary hearings in the district court on the voluntariness of the waiver. The trial court therefore ruled that there was no voluntary waiver.

¶70 In a different case, if there were a real factual question about the voluntariness of consent to a breath test, the State could offer facts at a fact-finding hearing on the exception to the warrant requirement. And in a different case, if there were a factual question about whether any other exception to the warrant requirement applied, the State could offer facts relevant to those case-by-case determinations. But on this record, the trial court correctly ruled that the State did not present any evidence at the hearings on the existence of voluntary consent, or exigent circumstances or any other exception to the warrant requirement, based on the facts in these cases.

¶71 I would therefore affirm both suppression orders.

Fairhurst and Stephens, JJ., concur with Gordon McCloud, J.

12 In the trial court, the State agreed. Adams Verbatim Report of Proceedings (VRP) (Mar. 27, 2014) at 158 (“[t]he State concedes of course that the breath test is a search”); Baird VRP (Apr. 10, 2014) at 60, 63-64 (same concession several times).