CA1: Exigencies of dealing with a DUI crash and death made it reasonable to dispense with SW for BAC

Defendant was charged with DUI deaths in a national park. The exigencies of dealing with the crash and its aftermath justified the delay in BAC testing and getting it without a warrant. United States v. Manubolu, 20-1871 (1st Cir. Sept. 14, 2021):

Other factors — beyond delays in getting a BAC test due to the warrant process — affect the exigent circumstances calculation. If there is an accident “where time had to be taken to bring the [suspect] to a hospital and to investigate the scene of the accident,” because of the nature of the crash or the lack of investigative resources to assist, then there might not have been “time to seek out a magistrate and secure a warrant” for the blood draw. Schmerber, 384 U.S. at 770-71, 86 S.Ct. 1826.

Recently, a plurality opinion for the Supreme Court summarized the doctrine borne from McNeely and Schmerber as establishing a “spectrum” of exigencies that permits a warrantless blood draw when: “(1) BAC evidence is dissipating; and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.”20 Mitchell, 139 S. Ct. at 2537. The point being that in McNeely there was no exigency — it was a routine drunk-driving stop without an accident or incident — while in Schmerber there was an exigency — because of the accident, attendant injuries, investigative needs, and limitations on police resources. See Fourth Amendment–Search and Seizure-Warrantless Blood Draws–Mitchell v. Wisconsin, 133 Harv. L. Rev. 302, 308 (2019). We key in on the second part of the Mitchell test (pressing needs) because neither party here disputes the first (the dissipation of BAC evidence) and because the district court relied upon the second.

In an unfortunate number of instances when there is a drunk-driving accident, like Manubolu’s, the officers “may have to deal with fatalities” or provide first aid until medics arrive at the scene. Mitchell, 139 S. Ct. at 2538. They also “may have to preserve evidence at the scene.” Id. Such “pressing matters” in addition to time-intensive warrant procedures could delay the BAC draw, and “would require responsible officers to put off applying for a warrant.” Id. Waiting to draw blood until a warrant has been secured “would only exacerbate the delay — and imprecision — of any subsequent BAC test.” Id.

Because modern technology has not eliminated the time it takes to get a warrant, the Supreme Court has cautioned against “forc[ing officers] to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value.” Id. at 2538-39. Preventing that “kind of grim dilemma” is precisely “the kind of scenario for which the exigency rule … lives to dissolve.” Id. at 2538. Notwithstanding that point, remember that the police must “reasonably judge[ ] that a warrant application would interfere with other pressing needs or duties.” Id. at 2539. As Justice Sotomayor (the author of McNeely) commented in dissent in Mitchell, “in many cases, the police will have enough time to address medical needs and still get a warrant.” Id. at 2550-51 (Sotomayor, J., dissenting).

What this precedent leaves us with is this: we must decide if the officers responding to Manubolu’s crash faced a set of pressing health, safety, and investigative needs that would have so delayed the warrant, especially considering the jurisdiction’s application processes, that officers in their shoes reasonably would have believed that they would have “significantly undermin[ed]” the efficacy of the BAC evidence by waiting to do the blood draw. McNeely, 569 U.S. at 152, 133 S.Ct. 1552.