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Title: Warrantless Blood Draw Stopped by Utah Nurse Was Legal in Another Reality (The facts and the law are on Alex Wubbels' side.)
Source:
Reason
URL Source: https://reason.com/blog/2017/09/06/ ... s-nurse-who-stopped-warrantles
Published: Sep 6, 2017
Author: Jacob Sullum
Post Date: 2017-09-07 07:01:56 by Deckard
Keywords: None
Views: 17279
Comments: 85
Alex Wubbels, the Salt Lake City nurse who was arrested on video after she refused to let a cop draw blood from an unconscious patient without consent or a warrant, has been widely praised for taking a stand against unconstitutional invasions of privacy. Her admirers do not include Gregg Re, a lawyer who argues in a recent Daily Caller piece, provocatively headlined "Arrested Utah Nurse Had It Coming," that "Wubbels was likely legally wrong under federal law." But Re cannot back up that contrarian claim without resorting to hypotheticals that do not bear any resemblance to this case.
Suppose "your neighbor bursts through your front door with a pile of drugs in his hands," Re says. The neighbor is trailed by cops who demand entry as he flushes the drugs down your toilet. If you refuse to let the cops in, Re says, they would be justified in entering anyway and might even arrest you if you tried to interfere. The point, he says, is that "police simply do not need a warrant if exigent circumstances justify an urgent search and seizure of evidence."
That scenario is a red herring, because Re never explains how Wubbels resembles the drug dealer's uncooperative neighbor. In particular, he fails to describe the exigent circumstances that supposedly justified Det. Jeff Payne's demand for her patient's blood, relying unstead on inapplicable generalities. "The imminent loss of blood evidence, which would be useful in a drunk-driving case, qualifies as a potentially exigent circumstance," Re writes. Potentially, yes. Necessarily, no.
In the 2013 case Missouri v. McNeely, the Supreme Court said "the natural dissipation of blood alcohol" does not automatically provide the "exigent circumstances" that would justify a nonconsensual, warrantless blood draw in a drunk driving case. "When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so," the Court said. "While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case...it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances."
Re suggests the totality of the circumstances in the Utah case might have justified Payne's attempt to draw blood from William Gray, a truck driver who was critically injured in a crash with a vehicle driven by a man who was fleeing police. But as Scott Greenfield notes, "there was no attempt to obtain a warrant for the blood draw or reason why a warrant could not be obtained within a time frame sufficient to preserve the evidence." What's more, Gray was not a suspect in a drunk driving case; he was the victim of the other driver, who was killed in the crash.
That fact, Re concedes, "raises questions as to whether it was legally reasonable for the police to obtain his blood sample if he was, in fact, a victim not suspected of any crime." Payne reportedly wanted Gray's blood to help show that he bore no responsibility for the collision. That goal does not qualify as probable cause for a search and seizure, which requires a "fair probability" that evidence of a crime will be discovered.
In short, although probable cause and exigent circumstances can justify a nonconsensual, warrantless blood draw, there is no evidence that either existed in this case. Presumably that's why, although Payne handcuffed Wubbels while accusing her of interfering with his investigation, no charges were filed against the nurse. It is also why Payne, who is on administrative leave while his department conducts an investigation of his behavior, could face criminal charges instead.
Re aims to throw cold water on the "near-universal outrage" provoked by Wubbels' arrrest and correct "reams of inaccurate reporting on the incident." Instead he muddies the issue by arguing that Payne's actions could have been legal if the facts were different. (1 image)
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Re aims to throw cold water on the "near-universal outrage" provoked by Wubbels' arrrest and correct "reams of inaccurate reporting on the incident."
Re aims to draw attention to himself, which he did.
As far as the issue itself goes, he threw gasoline on a fire that just made the whole case that much worse for the cop and his supervisor.
Legal sophistry is not going to save Payne or his supervisor, it is just going to make those who want to get him willing to engage in their own blunt force legal sophistry, and power is decided not by right, but by politicians - who answer to voters, not cops.
Re's article, if it does anything at all, will merely succeed in enhancing the punishment of the cop. When you have to resort to storytelling to argue for somebody's egregious behavior - when you have to essentially make up an entirely new case and set of facts, because the real case and facts are so bad for you - you're better off throwing yourself on the mercy of the court.
Payne and his supervisor are going to have to rely on mercy, because the law is going to nail them both to a cross. If they stand on law, they die: they broke it, and the nurse upheld it. Every judge will see it that way. Every politician will see it that way. The cops don't have a pot to piss in.
The police chief KNOWS THAT, which is why he is not standing with his officers. They are to be cut away and thrown to the public to be torn apart, in order to protect the department. This wasn't some black thug who was abused on camera. It was an elite white professional in medicine, which is held in greater trust and higher esteem than cops. The police chief knows that. Payne and his supervisor are going to be broken men, and nobody will have any sympathy for them. They're scapegoats.
#2. To: Deckard (#0)
"there was no attempt to obtain a warrant for the blood draw or reason why a warrant could not be obtained within a time frame sufficient to preserve the evidence."
Because, in this case, there was no need. State of Utah law allows for a blood draw on an unconscious driver.
Maybe other states don't. But that irrelevant.
#3. To: Vicomte13 (#1)
Legal sophistry is not going to save Payne or his supervisor
Of course it will. Payne and his supervisor were acting within the law and within departmental policy.
Now, if they weren't, the why did they change departmental policy? And why haven't Payne and his supervisor been fired and charged with violating the law?
Because I'm right.
#4. To: misterwhite (#3)
Because I'm right.
The facts prove otherwise.
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#5. To: Deckard (#4) (Edited)
The facts prove otherwise.
Here's a fact. State of Utah 41-6a-522. Person incapable of refusal.
Any person who is dead, unconscious, or in any other condition rendering the person incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent provided for in Subsection 41-6a- 520(1), and the test or tests may be administered whether the person has been arrested or not.
I see no exception there for hysterical nurses citing hospital policy.
#6. To: Vicomte13 (#1)
Every judge will see it that way. Every politician will see it that way. The cops don't have a pot to piss in.The police chief KNOWS THAT, which is why he is not standing with his officers.
The chief did try. He only took Payne off blood-draw duty initially. It was only after nurse Wubbels obtained and released the video that Payne and his supervisor (seen in the video talking to Wubbels in the cop car) were suspended.
So that blue line held firm for over a month until the public exploded after seeing the video.
#7. To: misterwhite (#2)
Because, in this case, there was no need. State of Utah law allows for a blood draw on an unconscious driver.
You really are an idiot.
#8. To: Tooconservative (#6)
that Payne and his supervisor (seen in the video talking to Wubbels in the cop car) were suspended.
Suspended for what? Violating the state law on blood draws? Violating the U.S. Constitution? Violating police department policy on blood draws?
Or suspended simply because of public pressure to punish him and his boss for bruskly enforcing the law?
#9. To: Tooconservative (#7)
You really are an idiot.
I cited Utah law. You're the one who can't argue against it. So, like a 6-year-old, you yell insults. Pathetic.
#10. To: Tooconservative (#6)
So that blue line held firm for over a month until the public exploded after seeing the video.
But now it's out - because the nurse was angry, self-righteous and knew she was right, and her employer was angry and self-righteous also, and was right. And because the public worries about bully cops when they bully white professionals: THAT is not what the cops exist to do. When they bully blacks and illegals, most people really don't care. But when they start bullying white medical professionals, well, that means that the cops are getting too big for their britches. We all worry about that, and this crystallizes it.
So, she brought it forward, and has an economic incentive to do so as well. She's angry, and she can win money in court if she presses it. A white jury will side with her, and a black jury will too. Mr. White won't, but he'll be voir dired off the jury.
Now that it's out there, it crystallizes the zeitgeist. The case law is utterly terrible for the cops. Neo-Confederates care about the states- rights issue concerning Utah law. And they are a sliver of the population. Everybody else knows that the Supreme Court is the law of the land, and what they've said is clear and congenial to the attitudes of most people.
The cops don't have a pot to piss in.
Sure, as long as the cops are able to keep this stuff sub rosa, people don't see, and don't get riled. But they can't stop this nurse, she's got a huge head of steam, she's right, the public is aware and aroused. It's sort of like Pearl Harbor, really, what Payne did here. There was no path back for the Japanese after that: the people were riled.
Now, if the police force itself resists, then the hits will keep coming until they have their Appomattox moment. It's so much EASIER for them to claim that Payne was a rogue, unstable ass, publicly crucify him and hang his bloody pelt in the public square as an offering to the public, and then be allowed to return to their usual quiet and secretive ways.
That's what they'll do, too. When the only people who are standing up and defending it is a neo-Confederate fascist like Mr. White, they've already lost. Importantly, law enforcement and prosecutors are not even attempting to defend Payne. He's going to the scapegoat, all of the fury will be focused on him. He'll be thrown to the mob, receive political justice and will be a poor and broken man thereafter, a horror at whom people wag their heads. The police will move on.
They will not defend this guy, and the unions are smart enough not to destroy themselves trying to stand against an aroused public.
It all seems pretty just to me. Bullies should be bullied.
#11. To: misterwhite (#5)
Any person who is dead, unconscious, or in any other condition rendering the person incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent provided for in Subsection 41-6a- 520(1), and the test or tests may be administered whether the person has been arrested or not.
As has already been made clear, the law clearly states that a police officer must have probable cause to do a blood draw, regardless of implied consent. "Implied consent" is not a factor in this case in the slightest way.
I'm sure glad someone of your mentality is not arguing on my side of this case. I would be embarrassed.
#12. To: misterwhite (#5)
This law goes against the US Constitution, and clearly so. People have the right to travel in the common manner. Rights require nothing from the government to exist. Government is simply instituted to protect those rights from the tyranny of other people. Government itself is constrained and controlled by the Bill of Rights. The "implied consent" mentioned is just a tool forced forward to please a group of citizens who are more concerned about their political aim, saving humanity from drunks, than following the clear meaning of the 4th amendment.
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
#13. To: Vicomte13 (#10)
Now that it's out there, it crystallizes the zeitgeist. The case law is utterly terrible for the cops. Neo-Confederates care about the states- rights issue concerning Utah law. And they are a sliver of the population. Everybody else knows that the Supreme Court is the law of the land, and what they've said is clear and congenial to the attitudes of most people.
Even if a juror tries to nullify, a hung jury would result in a second trial where it is very unlikely there would be a second juror to nullify.
The police can hardly claim ignorance of the law after two big USSC cases. Certainly, the courts don't accept that excuse from anyone else, let alone those who are charged with enforcing the law on the public.
It could be that the prosecutors will weasel around, trying to find a way to let these two cops off the hook after the public has moved on. But I think the heat is very high on this one and the local media will follow it closely. So the cops are screwed, I think.
Now, if the police force itself resists, then the hits will keep coming until they have their Appomattox moment. It's so much EASIER for them to claim that Payne was a rogue, unstable ass, publicly crucify him and hang his bloody pelt in the public square as an offering to the public, and then be allowed to return to their usual quiet and secretive ways.
I think, much as in any jurisdiction, they will look for ways to let Payne off. But the heat is high and the public will likely remain aroused.
The hospital imposing restrictions on cops on the premises (access to emergency rooms, unable to speak to nurses) just ratchets the pressure higher. The judge, the prosecutors, the rest of the cops, all have to wonder how they will be treated the next time they get shot or hurt. Or a family member.
So I don't think this one just goes down the memory hole months from now.
#14. To: jeremiad (#12)
People have the right to travel in the common manner.
Your mean by car. Does everyone have that "right"? Children? Blind people? Illegals? Those with multiple DUIs?
So much for due process. More like a privilege, isn't it?
Whatever. In the State of Utah, a driver's license comes with the implied consent to a blood draw. The penalty for refusal is loss of driver's license. Where's the unconstitutionality?
The legislature also passed a law saying that an unconscious person "is considered to not have withdrawn the consent" already given. That law has not been challenged nor overturned by any court.
#15. To: Tooconservative (#13)
The police can hardly claim ignorance of the law after two big USSC cases.
Ignorance? They were FOLLOWING state law. Your retort is that those are old laws that haven't been cleaned up yet. Give me a f**king break.
"I think, much as in any jurisdiction, they will look for ways to let Payne off."
Hah! Let him off what? Being rude? What's he charged with? I hope he sues them for $10 million (plus back pay).
#16. To: misterwhite, Vicomte13, nolu chan, hondo68, Pinguinite, A K A Stone, kenh (#15) (Edited)
Ignorance? They were FOLLOWING state law. Your retort is that those are old laws that haven't been cleaned up yet. Give me a f**king break.
It's quite common for superceded laws to remain on the books. Let's look at one example.
Wiki: Sodomy laws in the United States
| On June 26, 2003, the U.S. Supreme Court in a 6–3 decision in Lawrence v. Texas struck down the Texas same-sex sodomy law, ruling that this private sexual conduct is protected by the liberty rights implicit in the due process clause of the United States Constitution. This decision invalidated all state sodomy laws insofar as they applied to noncommercial conduct in private between consenting civilians and reversed the Court's 1986 ruling in Bowers v. Hardwick that upheld Georgia's sodomy law. . . . As of April 2014, 17 states either have not yet formally repealed their laws against sexual activity among consenting adults, or have not revised them to accurately reflect their true scope in the aftermath of Lawrence v. Texas. Often, the sodomy law was drafted to also encompass other forms of sexual conduct such as bestiality, and no attempt has subsequently succeeded in separating them. Thirteen states' statutes purport to ban all forms of sodomy, some including oral intercourse, regardless of the participants' genders: Alabama, Florida, Georgia, Idaho, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, North Carolina, Oklahoma, South Carolina, and Utah. Three states specifically target their statutes at same-sex relations only: Kansas,[16][17] Kentucky, and Texas. Alabama (Alab. Code 13A-6-65.) |
Of the 14 states which still had sodomy laws on the books, only Montana and Virginia repealed their sodomy laws legislatively.
So is Utah still banning sodomy today? Hell, yes, it is.
Utah.gov: Utah 76-5-402, Sodomy -- Forcible sodomy
76-5-403. Sodomy -- Forcible sodomy.
Amended by Chapter 81, 2013 General Session |
So we see that 14 years after the USSC struck down these sodomy laws entirely, Utah has yet to repeal their sodomy law declaring all sodomy to be a Class B misdemeanor. They hide, legislatively, behind their forcible sodomy law (which is irrational but another kettle of fish). Notice that the Utah legislature last revisited this sodomy law in their 2013 General Session. So they chose quite deliberately, 10 years after the sodomy law was struck down by USSC, to amend their sodomy law in 2013 but not to repeal sodomy between consenting adults. Naturally, prosecutors in the state will be careful not to actually charge anyone for a Class B misdemeanor sodomy charge or that portion of the law goes poof the second a defendant goes to a federal judge, even pro se. And that will happen at some point, just a matter of time.
#17. To: misterwhite (#15)
Ignorance? They were FOLLOWING state law. Your retort is that those are old laws that haven't been cleaned up yet. Give me a f**king break.
You don't deserve an F'ing break because you are wrong.
No probable cause = no police authority to draw blood. Period. Implied consent = nothing in this case. That IS the law.
#18. To: misterwhite (#15)
hey were FOLLOWING state law. Your retort is that those are old laws that haven't been cleaned up yet. Give me a f**king break.
That wasn't my retort.
My retort is that the federal law blots out the state law whether or not the state law is repealed. The legislators of Utah can be as stubborn as they will. What the Supreme Court says the law is, is also the law in Utah, and the Utah statutes are voided by the Supreme Court decision, whether Utah chooses to repeal the law on its books or not.
Ignorance of the law is no excuse, we are told, by the cops, all the time. It is the Supreme Law of the Land that the Supreme Court has the final decision as to what the Constitution means, and the Constitution is supreme over all federal and state statutes within its purview.
Drawing blood is squarely within the Constitutional purview, so by writing their decision, the Supreme Court legally erased the Utah statute, regardless of what the Utah legislators do. The Law of the Land - which is The Law - is that the police CANNOT take a blood sample without consent or a warrant. Period. The fine distinctions of the former Utah law are no longer law at all, whether the Utah legislature acts or not, because the Supreme Court has ESTABLISHED the law for Utah and everywhere else by its decision. Everything in state law or local law contrary to that has ALREADY BEEN VOIDED, by the Supreme Court action. That it remains on the statute book is irrelevant. It IS NOT LAW anymore, because the Supreme Court is above that law, and its decisions are the law, not the old law.
Too Conservative gives the example of the sodomy laws. If the Utah troopers burst into somebody's house with or without a warrant, and find two consenting adult men boffing each other, if they arrest them for that they have broken the law, because The Law is that they can do that, and that the state cannot punish it. The state has an old, voided law on its books that it is illegal, but the cops break the law if they attempt to enforce that illegal law against the ACTUAL law, which was set in Washington by the Supreme Court. The Supreme Court decision on the matter IS "The Law". The Utah statute is no longer law. It has been voided.
Whether we're talking buggery or involuntary blood donations, that is still the case. So when police seek to enforce an illegal law, they commit assault and wrongful imprisonment of people acting lawfully. That then puts the police, and the police force budget, in the hazard for criminal and civil prosecution. Ignorance of the law is no excuse, and the police forces have a duty to make sure that the cops know the law - which, in this case, was not set by Utah but by Washington.
Now, one may have a philosophical problem with that, but the police are not entitled to act on their philosophical issues. Under our constitutional system, the Supreme Court is the final arbiter of the Constitution, and the Constitution is the Supreme Law of the land. So the cop leaves the parameters of his duty if he tries to erect a "states rights' political argument as to why he can follow the state statute and ignore the Supreme Court decision. If he goes past theoretical argument into arresting somebody for doing lawful things, he passes over into abuse of authority and should be prosecuted and hammered.
No breaks. Ignorance of the law, on the part of the police especially, is absolutely no excuse. The same abusive officers will tell YOU so, and they are also subject to law.
#19. To: Tooconservative (#16)
It's quite common for superceded laws to remain on the books. Let's look at one example.
The separation of powers doctrine makes it quite obvious that courts, even the USSC, cannot order even state legislatures to repeal any law, even ones they declare unconstitutional.
#20. To: Vicomte13 (#18)
That wasn't my retort.
That post wasn't directed at you.
"What the Supreme Court says the law is, is also the law in Utah"
Maybe. I mean, the defense can certainly bring it up at trial and the judge may or may not agree.
But at this stage, all the cop tried to do was draw the blood.
#21. To: Tooconservative (#16)
But are they enforcing those old laws? Utah is. So where's the parallel?
#22. To: misterwhite (#21)
But are they enforcing those old laws? Utah is. So where's the parallel?
Utah is not enforcing sodomy between consenting adults as a Class B misdemeanor because the second they try to do that, the defendant will run to a federal judge who will immediately strike it down. Then Utah loses even its (moot) social disapproval of sodomy that it is keeping on the books for that purpose.
Even though Utah is generally considered to have a pretty good legislature, they all make mistakes. I recall some years back that our state legislature had to be called back into session because they had simply forgotten to include allocating any money for the bus system in the state's largest city. Oops.
Don't assume they're being perverse when they're just being incompetent. But we know Utah revisited their sodomy statute in 2013, ten years after sodomy between adults was legalized by USSC. So in that instance, we know for certain that they deliberately left that unenforceable sodomy statute for consenting adults on the books. Notice they disapprove of hetero-sodomy equally with homo-sodomy.
Mormons. : )
#23. To: Tooconservative, misterwhite, Vicomte13, hondo68, Pinguinite, A K A Stone, kenh (#16)
It's quite common for superceded laws to remain on the books.
[Thread Article] Her admirers do not include Gregg Re, a lawyer who argues in a recent Daily Caller piece, provocatively headlined "Arrested Utah Nurse Had It Coming," that "Wubbels was likely legally wrong under federal law."
Nonsense. Nurse Wubbels was entirely correct. The guy the cop wanted to draw blood from was not even a suspect... he was the victim... the other driver was fleeing the police. The police attention was on the other driver... they were in hot pursuit.
There was no probable cause and no hope of a showing of exigent circumstances to perform a non-consensual evidentiary blood draw from the victim.
It is a clear and extremely compelling case of a false arrest of the nurse. Whatever comes to the cop, or his municipality, they have it coming.
The best the cop can hope for is that the municipality claims he was acting within the terms of his employment and brokers a very big settlement at their expense to make the case go away. There is no way to defend this crap. This one can be filed with shocks the conscience of the community.
https://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf
Missouri v McNeely, S Ct 11-1425, 569 US (17 Apr 2013)
SUPREME COURT OF THE UNITED STATESSyllabus
MISSOURI
v.
MCNEELYCERTIORARI TO THE SUPREME COURT OF MISSOURI
No. 11–1425. Argued January 9, 2013—Decided April 17, 2013
Respondent McNeely was stopped by a Missouri police officer for speed- ing and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing.
The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sam- ple. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California, 384 U. S. 757, in which this Court upheld a DWI suspect’s warrantless blood test where the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’” id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unrea- sonable searches of his person.
Held: The judgment is affirmed.
358 S. W. 3d 65, affirmed.
JUSTICE SOTOMAYOR delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. Pp. 4–13, 20–23.
(a) The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see, e.g., United States v. Robinson, 414 U. S. 218, 224, applies here, where the search involved a compelled physical intrusion beneath McNeely's skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception "applies when '" the exigencies of the situation" make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.' " Kentucky v. King, 563 U. S. ___, ___. This Court looks to the totality of circumstances in determining whether an exigency exits. See Brigham City v. Stuart, 547 U. S. 398, 406. Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while offocers transported the injured suspect to the hospital and investigated the accident scene. Pp. 4-8.
(b) The State nonetheless seeks a per se rule, contending that exigent circumstances necessarily exist when an officer has probable cause to believe that a person has been driving of alcohol because BAC evidence is inherently evanescent. Though a person's blood alcohol level declines until the alcohol is eliminated, it does not follow that the court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U. S. 451, 456. Circumstances may make obtaining a warrant impractical such that the alcohol's disspation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber, not to accept the "considerable overgeneralization" that a per se rule would reflect, Richards v. Wisconsin, 520 U. S. 385, 393. Blood testing is different in critical respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a suspect has control over easily disposable evidence, see Cupp v. Murphy 412 U.S. 291, 296, BAC evidence naturally dissipates in a gradual and relatively predictable manner. Moreover, because an officer must typically take a DWI suspect to a medical facility and obtain atrained medical professional's assistance before having a blood test conducted, some delay between the time of the arrest or accident and time of the test is inevitable regardless of whether a warrant is obtained. The State's rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence supporting probable cause is simple. The natural dissipation of alcohol in the blood may support an exigency finding in a specific case, as it did in Schmerber, but it does not do so categorically. Pp. 8–13.
(c) Because the State sought a per se rule here, it did not argue that there were exigent circumstances in this particular case. The arguments and the record thus do not provide the Court with an adequate framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. Pp. 20–23. JUSTICE SOTOMAYOR, joined by JUSTICE SCALIA, JUSTICE GINSBURG, and JUSTICE KAGAN, concluded in Part III that other arguments advanced by the State and amici in support of a per se rule are unpersuasive. Their concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers may make the desire for a bright-line rule understandable, but the Fourth Amendment will not tolerate adoption of an overly broad categorical approach in this context. A fact-intensive, totality of the circumstances, approach is hardly unique within this Court’s Fourth Amendment jurisprudence. See, e.g., Illinois v. Wardlow, 528 U. S. 119, 123–125. They also contend that the privacy interest implicated here is minimal. But motorists’ diminished expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. Pp. 15–20.
Unconstitutional State law or regulation that has been allowed to remain on the books does not help in the least. Such law or regulation is null and void, whether it remains on the books or not.
Gibbons v Ogden, 22 US 1, 209-11 (1824)9 Wheat. 1, 6 L.Ed 29
United States Supreme Court
GIBBONS v. OGDEN, (1824)
No. 43
Decided: March 2, 1824
[...]
At 209-211
Since, however, in exercising the power of regulating their own purely internal affairs, whether[22 U.S. 210]
of trading or police, the States may sometimes enact laws, the validity of which depends on their interfering with, and being contrary to, an act of Congress passed in pursuance of the constitution, the Court will enter upon the inquiry, whether the laws of New-York, as expounded by the highest tribunal of that State, have, in their application to this case, come into collision with an act of Congress, and deprived a citizen of a right to which that act entitles him. Should this collision exist, it will be immaterial whether those laws were passed in virtue of a concurrent power ‘to regulate commerce with foreign nations and among the several States,’ or, in virtue of a power to regulate their domestic trade and police. In one case and the other, the acts of New-York must yield to the law of Congress; and the decision sustaining the privilege they confer, against a right given by a law of the Union, must be erroneous.
This opinion has been frequently expressed in this Court, and is founded, as well on the nature of the government as on the words of the constitution. In argument, however, it has been contended, that if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the constitution, they affect the subject, and each other, like equal opposing powers.
But the framers of our constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of any act,
[22 U.S. 211]
inconsistent with the constitution, is produced by the declaration, that the constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the State Legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution, or some treaty made under the authority of the United States. In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.
#24. To: nolu chan, misterwhite, Pinguinite, A K A Stone, Vicomte13 (#23)
The best the cop can hope for is that the municipality claims he was acting within the terms of his employment and brokers a very big settlement at their expense to make the case go away. There is no way to defend this crap. This one can be filed with shocks the conscience of the community.
But his supervisor ordered him (supposedly) to get the blood sample at the request of the Logan, Utah police in whose jurisdiction the crash occurred. However, it was the Utah state patrol who responded to the 911 calls of a reckless driver and chased the perp into the head-on crash and then put out the driver when he was on fire. The Logan PD only rolled out when their fire department and ambulance responded.
So where was Payne's probable cause for anything? The SLCPD had no involvement at all.
So Payne and his supervisor can only be seen as agents of the Logan PD. But Logan PD never had control of the crime scene as far as I know. The Utah troopers caused the crash and controlled the accident scene.
This business of who was asking for the blood is one that no one has answered, that few have even asked. But SLCPD had no interest or jurisdiction. Logan PD had no compelling interest. But Utah highway patrol did.
Well, we'll have to wait to see what the investigation reveals. I'm thinking that the prosecutors are going to carefully try to avoid these questions entirely. But we do know that Payne didn't assault and arrest that nurse to get the blood just so he could "protect" the victim. That explanation stinks to high heaven. You know it's a bullshit lie from the moment you hear it.
#25. To: Tooconservative (#24)
Utah troopers caused the crash
You Think so
wwwwhhhaaaaTTT
boris
If you ... don't use exclamation points --- you should't be typeing ! Commas - semicolons - question marks are for girlie boys !
#26. To: Tooconservative (#24)
This business of who was asking for the blood is one that no one has answered, that few have even asked. But SLCPD had no interest or jurisdiction. Logan PD had no compelling interest. But Utah highway patrol did.
Who, and why. Given there was no lawful reason to obtain the sample, the investigation should definitely try to get at the reason *why* Payne was so hot under the collar to get it.
Maybe he was having a bad day, or maybe he's had a long standing grudge against the hospital staff and had a score to settle. Or maybe it was for some more nefarious reason (as we theorized before of the police possibly wanting to frame him as being partly responsible for the crash).
Yes, there is absolutely no way any blood test results could be used to protect the victim. It could only be used against him.
#27. To: Pinguinite (#26)
Who, and why. Given there was no lawful reason to obtain the sample, the investigation should definitely try to get at the reason *why* Payne was so hot under the collar to get it.
Exactly. Was he going to have the blood processed at the expense of the SLC PD when they had no interest in the case and could not do anything about it?
Or was he going to deliver the blood to Logan PD or the Utah highway patrol?
I can't get away from this question: who wanted this blood and why? And why was it important enough to assault and arrest a nurse?
If the trucker or the nurse sues, it won't be just the SLCPD on the hook. It will likely be Logan PD and/or UHP as well. The discovery process and subpeonas will make for interesting reading.
#28. To: misterwhite (#20)
Maybe. I mean, the defense can certainly bring it up at trial and the judge may or may not agree.But at this stage, all the cop tried to do was draw the blood.
Nope. There's no procedural requirement that the cops be permitted to get what they want, and the defendant can sort it out at trial.
The cops don't have the right to take what they have no right to take. The cops had no right at all to arrest that woman. Now THEY'RE the defendants, so THEY can argue at THEIR trials that they DID have the right to do what they did.
There's no reason to let the process that the cops would prefer be the one that governs. Rather, the process that holds them accountable seems to be the better one.
#29. To: Tooconservative (#27)
I can't get away from this question: who wanted this blood and why? And why was it important enough to assault and arrest a nurse?
You're thinking logically. Payne was using a different logic: I AM A FUCKING COP, I HAVE COMMANDED YOU, A LITTLE PERSON, TO DO SOMETHING THAT I SAY IS NECESSARY. YOU HAVE DARED TO DEFY ME. MY SUPERVISOR AND I BOTH AGREE: NOBODY SAYS NO TO THE COPS. I WARNED YOU, YOU STOOD UP TO ME AND DARED ME TO DO THIS. THE LAW WILL ALWAYS PROTECT ME, YOU STUPID BITCH. NOW KNEEL AND SUBMIT!
THAT was what he was thinking. It was pure RAGE at having his "authoritah" questioned.
Trouble is, this guy just ran into the end of the road. Yep, that usually works for cops. Not this time. This one goes to the cross, a sacrificial victim that will be thrown to the mob to satisfy their hatred for abuse by the cops.
He deserves it, of course, as does his supervisor. He's an arrogant prick who has never been called to the mat before, because that never happens. But he had his little "Respect ma authoritah!" meltdown on camera in a hospital with an intelligent former Olympian, and the victim lying in bed was also a cop - something Payne could not have known.
Essentially, he pulled the pin on a grenade and then dropped it into his own pants.
There is no escape for him.
#30. To: Vicomte13 (#28)
There's no procedural requirement that the cops be permitted to get what they want,
Other than the current State of Utah law, no.
"and the defendant can sort it out at trial."
Correct. If it had gone that far.
"The cops don't have the right to take what they have no right to take."
Sure they do. State law and police procedures said they did. NOW, whether or not that evidence would be admissable is another story.
"The cops had no right at all to arrest that woman."
You might argue that they shouldn't have, but they did have the power to arrest her for interfering with an investigation, obstruction, and resisting arrest.
#31. To: Vicomte13 (#29) (Edited)
There is no escape for him.
What's the penalty if he gets convicted for being rude? Because that's the only charge I see.
#32. To: Vicomte13 (#29)
THAT was what he was thinking. It was pure RAGE at having his "authoritah" questioned.
Yeah but who was he going to deliver the blood to? That's my obsession.
SLCPD had no jurisdiction at all. The accident did not occur in their territory. They could only be acting as the agents of Logan PD or Utah highway patrol. They couldn't even test the blood and submit the results in a court because they were not party to anything (except assaulting and arresting a burn unit head nurse).
#33. To: Tooconservative (#24)
So where was Payne's probable cause for anything?
You DO love a mystery, don't you? He might have been the only police phlebologist available at the time, and he worked in this capacity for all law enforcement agencies.
Mystery solved.
#34. To: misterwhite (#31)
What's the penalty if he gets convicted for being rude? Because that's the only charge I see.
False arrest, for one thing. Whether she was charged or not.
The same laws that protect police from interference also protect EMTs and medical personnel. So those were violated as well.
#35. To: misterwhite (#30)
Other than the current State of Utah law, no.
Utah law is irrelevant. It does not exist on the subject matter here. There is only federal law. Utah law broke it. So Utah law ceased to exist.
#36. To: misterwhite (#31)
What's the penalty if he gets convicted for being rude?
Loss of two jobs, no pension, no eligibility for retirement or unemployment benefits, poverty, despair.
#37. To: Vicomte13 (#29)
You're thinking logically. Payne was using a different logic: I AM A FUCKING COP, I HAVE COMMANDED YOU, A LITTLE PERSON, TO DO SOMETHING THAT I SAY IS NECESSARY. YOU HAVE DARED TO DEFY ME. MY SUPERVISOR AND I BOTH AGREE: NOBODY SAYS NO TO THE COPS. I WARNED YOU, YOU STOOD UP TO ME AND DARED ME TO DO THIS. THE LAW WILL ALWAYS PROTECT ME, YOU STUPID BITCH. NOW KNEEL AND SUBMIT!
THAT was what he was thinking. It was pure RAGE at having his "authoritah" questioned.
That's the best case scenario, but the potential is there for the motive to be more than simply a cop who went off on a power trip. Not long ago, a cop accidentally videoed himself planting drug evidence to frame an innocent person, or perhaps more accurately, someone the cop believed was not innocent but for whom insufficient evidence existed to justify and arrest and charging.
That event was not simply a cop losing his cool one day, but was instead an indication of an intentional criminal act meant to destroy the life of a person he did not care for, and strongly suggests it was one corrupt incident of many committed against a great many people.
In this case with Payne, maybe it was a case of a cop losing his cool, but I would point out that the cop certainly didn't decide 2 minutes before the arrest that he wanted the blood sample. There is little doubt he traveled whatever distance it was to the hospital with the intent of getting the blood sample, and it's safe to say that decision was made long before he lost his cool with the nurse. He had a premeditated intent to get the blood sample before he arrived there, and it was for some reason that obviously had no lawful authority.
So the reason Payne and his supervisor wanted the blood sample should be explored and should not be considered trite.
#38. To: Vicomte13 (#36)
Loss of two jobs, no pension, no eligibility for retirement or unemployment benefits, poverty, despair.
Well, Payne lost his paramedic job.
So it's one down, one to go.
#39. To: Pinguinite (#37)
He had a premeditated intent to get the blood sample before he arrived there, and it was for some reason that obviously had no lawful authority.
He said on the video, "I'm leaving here with those blood vials or a body in tow."
I think those were his orders, no matter what his supervisor may say contrary to that.
The FBI will likely sort it out pretty quickly, even with cops who know their interrogation techniques.
#40. To: Pinguinite (#37)
So the reason Payne and his supervisor wanted the blood sample should be explored and should not be considered trite.
I agree with you. Investigate that - and if you find the conspiracy, round them all up and send them to prison for the maximum term. Also round up everybody who covers for them. They may have to hire a new police force as a result, and if so, then good. That's what prisons are for - to open up jobs to other people.
But to keep the public interested, keep focusing on the wild abuse. That whips up the hatred for the cop and his supervisor, and prevents the authorities from closing ranks. Whip the hate to a white hot fury, so they can't let these guys off. Even if they cover for the rest, the public MUST have its blood, and hauling these guys before a public trial, stripping them of everything, and then tracking their beatings and torment, and probably eventual murder, in prison, will be very satisfying for the public, and very troubling for the police, and act to keep them in check.
Since people won't rule themselves as Christian, then rule them as Satan.
#41. To: Pinguinite (#38)
Well, Payne lost his paramedic job.So it's one down, one to go.
Four to go:
He has to lose his cop job, his property, his liberty and, in prison, his anal virginity. At a minimum.
He is hated. He must be made an example of through public crucifixion, modern style. That involves prison, prison beatings, prison rape and early death.
We need his head on a pike. Nothing short of that will do.
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