In Split Decision, Colorado Supreme Court Affirms Suppression of Warrantless Blood Draw
Today, the Colorado Supreme Court issued its opinion in People v. Schaufele, __ P.3d __ (2014 CO 43) and, in a 5-2 decision, rejected an attempt by prosecutors to reverse a suppression order by the Arapahoe County District Court, which was premised on the United States Supreme Court decision in Missouri v. McNeeley, 133 S.Ct. 1552 (2013).
Justice Hood authored the judgment of the court and was joined by Justices Marquez and Hobbs. Justice Boatright, joined by Chief Justice Rice, concurred in the judgment. Justice Eid authored a dissent, joined by Justice Coats.
The opinion suggests that Colorado will adhere to the view that Missouri v. McNeely, itself a split decision, instructs a trial court, assessing the constitutional validity of a warrantless blood draw, to consider the “totality of the circumstances,” rather than adopting a broad exception that a warrantless blood draw is always authorized “if an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant.”
Three of Colorado’s seven justices directly took this position. Two others, Justices Boatright and Hobbs, affirmed the trial court’s decision on procedural grounds, but the rationale underlying their concurrence strongly suggests agreement on the key point.
Only two justices, Eid and Coats, would have unabashedly adopted the broad exception urged by the prosecution.
Colorado, like many jurisdictions, has an “Express Consent Law,” which, among other things, authorizes police to take involuntary blood samples in DUI cases, “subject to constitutional limitations,” from suspects for whom they have probable cause to believe have committed certain crimes, including vehicular assault or vehicular homicide. The question is what qualifies as a “constitutional limitation,” because warrantless searches and seizures are generally prohibited. One of the exceptions to this rule is “exigent circumstances.”
In McNeely, the Supreme Court dealt with the prosecution’s assertion that all cases involving blood alcohol evidence always involve “exigent circumstances,” because blood alcohol tends to dissipate over time. Therefore, warrants should never be required. Only Justice Thomas agreed with this position. The other justices all recognized the fact that modern science is more than capable of extrapolating blood alcohol levels over a limited period of time, given the extensive research and agreement on the subject.
However, the remainder of the Court split over the exact nature of the test to be used to determine whether an exigency actually exists in a particular situation. Four justices adopted a totality of the circumstances test. Three justices went a different route and would have restricted the question to “whether an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant.” Because Justice Thomas saw no problem at all with warrantless blood draws, this left the Court at 4-4 regarding the “totality of the circumstances” test. This left Justice Kennedy’s concurring opinion as the “swing vote.” Justice Kennedy wrote that, while more specific guidelines than “totality of the circumstances” might be necessary in the future, this was not the case in which to announce or adopt them. Thus, the four-justice plurality prevailed. The test suggested by the minority did not garner any additional support from Kennedy’s opinion.
In People v. Schaufele, the trial court applied the totality of the circumstances test and essentially found that police should have at least attempted to get a warrant. The prosecution did not disagree with its findings. However, after it announced its decision, the state filed a motion to reconsider, asking it to apply a different test – the test proposed by the minority in McNeely. The trial court denied this motion and the prosecution appeal that decision.
Three of Colorado’s seven justices agreed that the trial court acted correctly in rejecting the minority test and ruled that it was bound to apply the totality of the circumstances test. Two other justices ruled that the issue was not properly presented by the prosecution because it had not raised this issue in the original hearing and had not appealed the original ruling. Thus, the net result of Schaufele could be viewed as nothing more than putting the whole issue off for another case on another day.
However, defendants and civil libertarians can take some encouragement from the fact that one of the exceptions to appealing the denial of a motion for reconsideration is that the trial court misapplied the law, and in this case, the two concurring justices found that it did not do so. While that may not be as straightforward a statement as made by the three-judge plurality, it’s still a strong signal that the totality of the circumstances test will prevail in Colorado until the United States Supreme Court clearly rules otherwise.
An interesting aspect to the facts underlying this opinion is that none of the officers even considered applying for an expedited warrant in this case. They acknowledged that they did not know how much of a delay would have been involved, because they had never once attempted to use the procedure. If anything, this tells us that police will routinely use shortcuts to avoid the warrant requirement, even where those shortcuts are founded on sheer ignorance of available procedures.