{"id":1414,"date":"2008-01-03T13:49:47","date_gmt":"2007-10-04T10:52:09","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-10-04T10:52:09","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1414","title":{"rendered":"Availability of telephonic search warrant nullified state’s exigency argument in DUI case for warrantless blood draw"},"content":{"rendered":"

Availability of telephonic search warrant militated against the state’s exigency argument in DUI case for warrantless blood draw. State v. Shriner<\/a>, 739 N.W.2d 432 (Minn. App. 2007):<\/p>\n

The question then becomes whether in this proceeding there are factors, together with the suspected presence of alcohol, that constitute exigent circumstances sufficient to justify the warrantless blood draw. We employ a totality-of-the-circumstances approach. Here, Shriner was arrested at her vehicle one-half mile from Fairview Ridges Hospital. Officer Yakovlev quickly transported Shriner to that hospital and a blood draw was made less than 45 minutes after she was last in the driver’s seat of her vehicle. He did not give her the implied-consent advisory or seek her consent to the draw. Officer Yakovlev did not believe that Shriner was injured, did not have responsibility for any other person injured as a result of the accident, and did not have a crime scene that required his attention. He was able to focus on acquiring evidence of Shriner’s intoxication. Based on a two-hour rule to establish guilt under Minn. Stat. \u00a7\u00a7 169A.20, subd. 1(5) (2004), and 609.21, subd. 2b(4) (2004), the question becomes whether a warrant could reasonably have been obtained within a timeframe that would not have compromised the test results.<\/p>\n

The process for obtaining a search warrant is set out in the statutes and court rules. See Minn. Stat. \u00a7\u00a7 626.04 to .18 (2006); Minn. R. Crim. P. 36. Although the prosecuting attorney often handles the application for a search warrant, law enforcement may apply directly to the judge. See, e.g., State, City of Minneapolis v. Cook<\/em>, 498 N.W.2d 17, 18-19 (Minn. 1993); State v. McGrath<\/em>, 706 N.W.2d 532, 537 (Minn. App. 2005). In this case, it was evening. The Burnsville police officers may have had to contact a prosecuting attorney at home to prepare a warrant request. Next, law enforcement would have had to locate a judge, request a warrant, obtain the warrant, and then provide evidence of the warrant to the staff at the Fairview Ridges Hospital to authorize the nonconsensual blood draw. This takes expeditious action.<\/p>\n

Minnesota law authorizes the use of telephonic warrants. See Minn. R. Crim. P. 36.01. Caselaw has recognized the availability and validity of telephonic search warrants. See, e.g., State v. Lindsey<\/em>, 473 N.W.2d 857 (Minn. 1991). In State v. Raines<\/em>, 709 N.W.2d. 273, 275 (Minn. App. 2006), review denied (Minn. Apr. 18, 2006), police officers requested a telephonic warrant at 3:10 a.m. in Pine County. The warrant was executed within one hour and fifty minutes. Id<\/em>. And in State v. Cook<\/em>, 498 N.W.2d 17, 18-19 (Minn. 1993), a judge issued a telephonic search warrant less than one hour after the request for the warrant was made. Here, the state has made no showing that it would have been unable to obtain a timely telephonic search warrant.<\/p><\/blockquote>\n

Comment:<\/em> The significance of this issue cannot be understated: In any state with a telephonic warrant system, it can be argued that a telephonic warrant militates against exigent circumstances. Tie this to the presumption favoring search warrants, and it can be persuasively argued that exigent circumstances are severely limited to true emergencies where there isn’t even time to call for a telephonic warrant.<\/p>\n

911 call provided basis for stop because of indicia of reliability. Commonwealth v. Rodriquez<\/a>, 70 Mass. App. Ct. 904, 873 N.E.2d 1221 (2007):<\/p>\n

The 911 calls established both the basis of the caller’s knowledge and his reliability. The caller identified himself as a driver for Community Taxi; apprised police that his vehicle had just been struck by another vehicle at a defined location; described in detail the offending vehicle and the direction in which it had driven off; and indicated that he was in pursuit. Within a few minutes, Manninen observed the described vehicle stopped in traffic a short distance away. More was not required to render the caller reliable and provide Manninen with reasonable suspicion to stop the vehicle.<\/p><\/blockquote>\n

Consent granted during a detention without reasonable suspicion to consent and merely endure a 5 minute search or wait 20-25 minutes for a drug dog was not voluntary. Lieblong v. State<\/a>, 2007 Ark. App. Lexis 662 (October 3, 2007).<\/p>\n

Odor of marijuana obvious on the porch of defendant’s house was probable cause. Use of drug dog on the porch was irrelevant. State v. Pereira<\/a>, 967 So. 2d 312 (Fla. App. 3DCA 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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