State v. Frescoln

IN THE COURT OF APPEALS OF IOWA
No. 16-2043
Filed December 6, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
HUNTER NATHANIAL FRESCOLN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan,
District Associate Judge.
Hunter Frescoln appeals the judgment and sentence entered following his
conviction for operating while intoxicated (OWI), second offense. AFFIRMED.
Robert G. Rehkemper III of Gourley, Rehkemper & Lindholm, P.L.C., West
Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Jean C. Pettinger and Timothy M.
Hau, Assistant Attorneys General, for appellee.
Heard by Danilson, C.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.
Hunter Frescoln appeals the judgment and sentence entered following his
conviction for operating while intoxicated (OWI), second offense. He challenges
the district court order denying his motion to suppress the results of a chemical
test showing his blood alcohol content was in excess of the legal limit.
I. Background Facts and Proceedings.
Ankeny Police Officer Jake Cusack initiated a traffic stop of the vehicle
Frescoln was driving on the night of August 12, 2016. During the stop, Officer
Cusack observed signs that Frescoln was intoxicated, and Frescoln admitted he
had consumed two beers. While Frescoln performed field sobriety tests, Officer
Cusack observed more signs that Frescoln was intoxicated. Frescoln refused to
submit to a preliminary breath test. Officer Cusack transported Frescoln to the
Pleasant Hill Police Department and secured a search warrant to seize a sample
of Frescoln’s blood for chemical testing, which showed Frescoln’s blood alcohol
content was .093.
The State charged Frescoln with OWI, third offense. Frescoln moved to
suppress the results of the chemical test, alleging the State violated his rights
under Iowa Code chapter 321J (2016) and the Iowa Constitution. The district court
denied the motion following a hearing. Frescoln waived his right to a jury trial, and
the case was submitted to the court on the minutes of evidence. The court found
Frescoln guilty of second-offense OWI and sentenced him to a period of not more
than two years of incarceration with all but thirty days of the sentence suspended.
II. Implied Consent Statute.
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The first question before us is whether a law enforcement officer has the
option of obtaining a sample for chemical testing by either invoking the implied
consent statute or obtaining a warrant. Frescoln asserts the Iowa legislature
removed the option of obtaining a chemical sample by warrant when it enacted our
implied consent laws. Under Frescoln’s interpretation, an officer may only obtain
a sample for chemical testing by following the procedure established by our implied
consent statute.
We review the district court’s interpretation of our implied consent statute
for the correction of errors at law. See State v. Lamoreux, 875 N.W.2d 172, 176
(Iowa 2016). We affirm if the district court’s ruling correctly applied the law and
substantial evidence supports its fact findings. See id.The United States and Iowa Constitutions prohibit unreasonable searches.
See State v. Moriarty, 566 N.W.2d 866, 868 (Iowa 1997). “A warrantless search
is presumed unreasonable.” Id. To conduct a valid search without a warrant, it
must fall under one of the recognized exceptions to the warrant requirement. See
id. An exception to the warrant requirement exists when a person consents to
allow the search. See id. However, obtaining a search warrant is the preferred
method for conducting a constitutionally permissible search. See Terry v. Ohio,
392 U.S. 1, 20 (1968) (“We do not retreat from our holdings that the police must,
whenever practicable, obtain advance judicial approval of searches and seizures
through the warrant procedure . . . .”); State v. Ochoa, 792 N.W.2d 260, 285 (Iowa
2010) (“We have also generally endorsed the warrant-preference requirement.”).
As our supreme court recently affirmed in State v. Pettijohn, 899 N.W.2d 1, 22-23
4
(Iowa 2017), “Whenever practicable, the state should obtain a warrant prior to
conducting a search.”
Our legislature enacted Iowa’s implied consent law “to protect public safety
and eliminate intoxicated driving from Iowa roads.” State v. McIver, 858 N.W.2d
699, 704 (Iowa 2015). Under the law, Iowa drivers have impliedly consented to
chemical testing when there are “reasonable grounds to believe that the person
has been operating a motor vehicle in violation of section 321J.2 or 321J.2A.” Iowa
Code § 321J.6(2); accord McIver, 858 N.W.2d at 705. The implied consent law
provides an incentive for drivers to consent to chemical testing by subjecting those
who refuse to voluntarily provide a sample for testing to license revocation. See
McIver, 858 N.W.2d at 704-05. It does not, however, require a driver to submit to
chemical testing. See id. at 704. Consent to chemical testing obtained under the
implied consent statute falls under the voluntary consent exception to the warrant
requirement. See State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991) (finding
Stanford voluntarily consented to chemical testing after reading implied consent
advisory); see also State v. Palmer, 554 N.W.2d 859, 861 (Iowa 1996); cf.
Pettijohn, 899 N.W.2d at 29 (analyzing whether, under the totality of the
circumstances, the defendant consented to submit to chemical testing pursuant to
Iowa Code chapter 462A—Iowa’s implied consent statute for boating—after
holding the chapter does not automatically permit warrantless searches consistent
with the Iowa Constitution). Therefore, it is imperative that the decision to provide
a sample for chemical testing be reasoned and informed. See State v. Overbay,
810 N.W.2d 871, 876 (Iowa 2012).
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In State v. Higgins, 294 N.W.2d 686, 687-88 (Iowa 1980), the supreme court
held that if a driver refuses a chemical test after being offered one under the implied
consent law, the officer cannot then go “outside the statute” to obtain a warrant for
chemical testing. It is undisputed that Frescoln was never presented with an
opportunity, through the invocation of implied consent or otherwise, to consent or
refuse evidentiary chemical testing. The Higgins decision is distinguishable
because here, Officer Cusack never invoked the implied consent procedures and
Frescoln never refused a chemical test.
Frescoln argues the procedures outlined in chapter 321J are the only
means by which law enforcement may obtain chemical testing of an OWI suspect.
He attempts to construe the statute in a manner making it the exclusive means by
which law enforcement can obtain chemical testing of persons suspected of OWI.
However, nothing in the statute expressly requires this finding. “We do not read a
requirement into a statutory scheme when none exists because ‘[i]t is not our
province to write such a requirement into the [implied consent] statute.’” State v.
Fischer, 785 N.W.2d 697, 705-06 (Iowa 2010) (alteration in original) (quoting
Gottschalk v. Sueppel, 140 N.W.2d 866, 872 (Iowa 1966)).
The explicit language of chapter 321J and our supreme court’s prior
decisions indicate the implied consent statute is not the exclusive means by which
law enforcement may obtain chemical testing. The final provision of the chapter
states:
This chapter does not limit the introduction of any competent
evidence bearing on the question of whether a person was under the
influence of an alcoholic beverage or a controlled substance or other
drug, including the results of chemical tests of specimens of blood,
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breath, or urine obtained more than two hours after the person was
operating a motor vehicle.
Iowa Code § 321J.18. Our supreme court has said this provision “expresses our
legislature’s intent that the chapter ‘not . . . be construed as limiting the introduction
of competent evidence bearing on whether an accused was intoxicated.’” State v.
Demaray, 704 N.W.2d 60, 64 (Iowa 2005) (quoting State v. Charlson, 154 N.W.2d
829, 833 (Iowa 1967)). In Demaray, a defendant consented to release his medical
records—including the results of a chemical test performed by the hospital for
purposes of treatment—to a law enforcement officer. See id. at 61. Although the
chemical test was not obtained according to the procedures set forth in chapter
321J, the supreme court held the results were not subject to suppression because
the chapter is not the exclusive means by which the State can obtain chemical
testing evidence from a defendant:
[T]here is no reason to limit the scope of a medical records release
by a defendant because the State could have invoked implied
consent procedures. Such rationale is contrary to the legislative
intent expressed in section 321J.18 for the implied consent statute
not to limit other competent evidence of intoxication, including
evidence of other tests.
Id. at 66 (emphasis added).
Our supreme court has also held that the procedure for obtaining a search
warrant set forth in section 321J.10 “does not limit the State’s authority to obtain a
search warrant under the general search warrant provisions of Iowa Code chapter
808.” See State v. Oakley, 469 N.W.2d 681, 682 (Iowa 1991). In Oakley, the
defendant refused to submit to chemical testing for law enforcement but authorized
a blood withdrawal for the purpose of independent testing. Id. The sample was
retained by law enforcement but was not analyzed until three months after the
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defendant’s arrest, when the county attorney obtained a search warrant to seize
the sample and have it tested. See id. Oakley sought to suppress the test results
because the State “made no attempt to comply with the procedures and time limits
of section 321J.10.” See id. In rejecting this argument, the supreme court noted
that “section 321J.10(2) expressly provides that search warrants may be obtained
either under the limited circumstances of section 321J.10(3) or in accordance with
chapter 808,” concluding, “The legislature obviously did not intend for chapter 321J
to preempt chapter 808.” Id. at 683. Following Oakley, the court has also held the
results of a chemical test conducted on a sample drawn by hospital personnel for
the purpose of diagnostic treatment and obtained by law enforcement one month
later pursuant to a search warrant were admissible. See State v. Rains, 574
N.W.2d 904, 913-14 (Iowa 1998), overruled on other grounds by State v. Williams,
895 N.W.2d 856 (Iowa 2017).
In accordance with the above, we find the State’s ability to obtain chemical
testing is not limited to the provisions of chapter 321J so long as the procedure
utilized conforms to constitutional requirements. Adhering to the warrant
requirement is the best means upon which to conform to the constitutional
protections from unreasonable searches and seizures. Because Officer Cusack
obtained a valid warrant for chemical testing, the results of Frescoln’s chemical
testing are admissible.1
1
Frescoln alleges that the equal protection clause of the Iowa Constitution compels a
finding that the implied consent procedure applies to all individuals investigated for OWI.
Although Frescoln argued at the suppression hearing that the implied consent law must
apply to every individual in order to prevent indiscriminate chemical testing, the district
court did not specifically address any equal protection argument in denying the motion to
suppress. Accordingly, the issue is not preserved for appeal. See State v. Mitchell, 757
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III. The Search Warrant.
Frescoln next argues the district court erred in denying his motion to
suppress because law enforcement exceeded the scope of the search warrant by
testing the blood sample obtained. He argues that although the warrant allowed
Officer Cusack to obtain a sample of his blood, it never authorized the officer to
perform chemical testing on that specimen.
We review the constitutionality of a search de novo. See State v. White,
887 N.W.2d 172, 175 (Iowa 2016). De novo review requires an independent
evaluation of the record. See id. Although we defer to the district court’s fact
findings, we are not bound by them. See id.A general search warrant is unconstitutional. State v. Thomas, 540 N.W.2d
658, 662 (Iowa 1995) (citations omitted). Instead, a warrant “must describe with
particularity the items to be seized.” State v. Hall, 235 N.W.2d 702, 717 (Iowa
1975). But the requirements are practical, not abstract, and “[e]laborate specificity
is not required.” See State v. Bakker, 262 N.W.2d 538, 545 (Iowa 1978). “A
description which points out or identifies the place to be searched with such
reasonable certainty as will obviate any mistake in locating it is all the Constitution
or statute requires.” State v. Moore, 101 N.W. 732, 733 (Iowa 1904). We construe
the language of the warrant “in a commonsense manner, resolving doubtful cases
in favor of their validity.” State v. Angel, 893 N.W.2d 904, 911 (Iowa 2017) (quoting
State v. Sykes, 412 N.W.2d 578, 581 (Iowa 1987)). In other words, there is no
requirement that a “hypertechnical, perfectly accurate description must be
N.W.2d 431, 435 (Iowa 2008) (holding an issue not ruled on by the district court is not
preserved for appeal).
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provided,” but rather the description in the warrant need only be “sufficiently
definite to enable the searcher to identify the persons, places or things the
magistrate has previously determined should be searched or seized.” Thomas,
540 N.W.2d at 662 (citations omitted).
The warrant issued states: “You are hereby commanded to take a specimen
of said person and to take such specimens into custody, and to bring a list of seized
specimens before me at my office.” The warrant further describes the “specimen”
as “[a] blood, urine, and/or breath specimen from [Frescoln].” The warrant then
states that the specimen was sought because “[o]fficers have probable cause to
believe that a traffic violation under Iowa Code § 321J.2 has occurred and the
specimen[] sought []is relevant to a criminal investigation into a violation of Iowa
Code § 321J.2.”
In denying Frescoln’s motion to suppress, the district court found “the
testing of the blood sample in this case did not exceed the scope of the warrant.”
We agree. Although the warrant does not explicitly state that the blood sample
would be subject to chemical testing, the stated reason for obtaining the blood
sample was its relevance to an OWI investigation. The best practice is to state the
purpose for requesting the sample on the warrant. However, a commonsense
reading of the warrant implies the blood sample would be subjected to chemical
testing. See State v. Martines, 355 P.3d 1111, 1116 (Wash. 2015) (holding a
warrant authorizing extraction of a blood sample to obtain evidence the defendant
was driving while under the influence necessarily authorizes testing of that sample
for evidence of the suspected crime).
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Furthermore, though the issue has not been decided in Iowa, we note that
other courts have held that a defendant loses a privacy expectation in blood after
its lawful removal from the body, and therefore, any testing of that blood does not
violate the constitutional protections from unreasonable searches and seizures.
See United States v. Snyder, 852 F.2d 471, 473-74 (9th Cir. 1988) (holding that
“so long as blood is extracted incident to a valid arrest based on probable cause
to believe that the suspect was driving under the influence of alcohol, the
subsequent performance of a blood-alcohol test has no independent significance
for fourth amendment purposes, regardless of how promptly the test is
conducted”); State v. Fawcett, 877 N.W.2d 555, 561 (Minn. Ct. App. 2016) (“Once
a blood sample has been lawfully removed from a person’s body, a person loses
an expectation of privacy in the blood sample, and a subsequent chemical analysis
of the blood sample is, therefore, not a distinct Fourth Amendment event.”); People
v. King, 663 N.Y.S.2d 610, 614 (N.Y. App. Div. 1997) (“It is also clear that once a
person’s blood sample has been obtained lawfully, he can no longer assert either
privacy claims or unreasonable search and seizure arguments with respect to the
use of that sample. Privacy concerns are no longer relevant once the sample has
already lawfully been removed from the body, and the scientific analysis of a
sample does not involve any further search and seizure of a defendant’s person.”);
see also Andrei Nedelcu, Blood and Privacy: Towards A “Testing-As-Search”
Paradigm Under the Fourth Amendment, 39 Seattle U. L. Rev. 195, 201 (Fall 2015)
(“[N]ational search and seizure jurisprudence is largely in agreement: No express
judicial authorization is needed to analyze a suspect’s blood (or any other
biological sample) once it has already been lawfully procured.”). Because the
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warrant limits the purpose of the testing in this case, we take no position on the
question whether a defendant would retain any expectation of privacy in a blood
sample seized under a search warrant.
Because we find the search warrant here provided for chemical testing of
the blood sample, we conclude Frescoln’s constitutional rights have not been
violated. We affirm the order denying Frescoln’s motion to suppress the results of
the chemical testing.
AFFIRMED.