PEOPLE OF THE STATE OF MICHIGAN v. GLORIANNA WOODARD
No. 336512
STATE OF MICHIGAN COURT OF APPEALS
September 19, 2017
FOR PUBLICATION 9:10 a.m. Jackson Circuit Court LC No. 15-004629-FH
Before: HOEKSTRA, P.J., and METER and K. F. KELLY, JJ.
In this interlocutory appeal, defendant has been charged with operating a motor vehicle while intoxicated, third offense,
I. FACTS AND PROCEDURAL HISTORY
On March 6, 2015, Michigan State Police Trooper Anthony Ramirez conducted a traffic stop of a vehicle driven by defendant. Initially, Ramirez stopped the vehicle because the license plate light was non-operational and the license plate had a “smoke tinted” cover. However, based on defendant‘s watery and blood shot eyes, the
On March 9, 2015, before testing on defendant‘s blood sample had been conducted, defendant‘s attorney sent Trooper Ramirez, the Jackson County Prosecutor, and the Michigan State Police Forensic Science Division a document entitled “Notice of Defendant‘s Withdrawal of Consent to Search, Demand to Cease and Desist Further Warrantless Search, and Demand for Return of Blood Samples.” In relevant part, this documented stated:
NOW COMES the Defendant, GLORIANNA WOODARD, by and through counsel, the Maze Legal Group, PC, by William J. Maze, and hereby provides notice that she withdraws her consent for further voluntary search of her blood sample based upon the following:
1. Defendant, GLORIANNA WOODARD, is alleged to have voluntarily permitted a withdrawal of his [sic] blood on or about March 6, 2015.
***
6. Defendant now affirmatively withdraws her consent for further search, demanding that the police, prosecutor and state laboratory immediately cease and desist from further search of the blood evidence, demanding that these state actors immediately obtain a search warrant to justify any search and/or continued detention of the blood sample, returning the blood sample to Defendant forthwith if a warrant is not sought and obtained immediately by the government.
***
9. If the Prosecuting attorney, Michigan State Police Forensic Science Division, or the Michigan State Police Jackson Post, desires to keep the blood sample and/or conduct any testing that has not already occurred on the blood sample, [defendant] demands that any search be conducted pursuant to a search warrant. . . .
The parties who received this notice did not heed its demand to cease further testing and return the blood sample. The subsequent analysis of defendant‘s blood sample revealed that she had a blood alcohol content of 0.212 at the time of the blood draw. The prosecutor charged defendant with operating a motor vehicle while intoxicated, third offense, and operating a vehicle while license is suspended or revoked.
In the circuit court, defendant filed a motion to suppress the results of her blood alcohol test, asserting that, although she consented to the blood draw, she revoked her consent before the tests were conducted and, in the absence of a warrant, the analysis of her blood constituted an unlawful search. In response, the prosecutor maintained that defendant did not have a privacy interest that would prevent the analysis of a lawfully obtained blood sample. Citing People v Perlos, 436 Mich 305; 462 NW2d 310 (1990), the trial court agreed with the prosecutor, concluding that testing of a lawfully obtained sample did not violate the Fourth Amendment. In denying defendant‘s motion for reconsideration, the trial court similarly reasoned that “once consent is given, blood is drawn, then they can go forward with the testing at that point . . . .” Following denial of her motion for
On appeal, defendant argues that the trial court erred by denying her motion to suppress the results of her blood test. In making this argument, defendant does not dispute that she voluntary consented to Ramirez‘s request for a blood test and she does not challenge the lawfulness of the blood draw at the hospital. Instead, defendant maintains that the subsequent analysis of her blood constituted a separate and distinct search. Because consent may be withdrawn at any time, defendant argues that, until her blood was analyzed, she could withdraw her consent to the blood test and demand the return of her blood sample. In view of her notice to authorities withdrawing her consent, defendant contends that any tests on her blood without a warrant were per se unreasonable and that the results of the testing must be suppressed.
II. STANDARDS OF REVIEW
A trial court‘s factual findings made when ruling on a motion to suppress are reviewed for clear error. People v Tavernier, 295 Mich App 582, 584; 815 NW2d 154 (2012). “But the application of constitutional standards regarding searches and seizures to essentially uncontested facts is entitled to less deference[.]” People v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005). We review de novo whether the Fourth Amendment was violated and whether the exclusionary rule applies. People v Mungo, 295 Mich App 537, 545; 813 NW2d 796 (2012). We also review de novo the trial court‘s ultimate decision on a motion to suppress. Williams, 472 Mich at 313.
III. ANALYSIS
“The Fourth Amendment of the United States Constitution and its counterpart in the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures.” People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000), citing
However, there are exceptions to the warrant requirement, including a search conducted pursuant to consent. People v Borchard-Ruhland, 460 Mich 278, 294; 597 NW2d 1 (1999). “Fourth Amendment rights are waivable and a defendant may always consent to a search of himself or his premises.” People v Frohriep, 247 Mich App 692, 702; 637 NW2d 562 (2001) (citation omitted). When conducting a consent search, the police are limited by the terms of the defendant‘s consent. People v Powell, 199 Mich App 492, 496; 502 NW2d 353 (1993). “The standard for measuring the scope of a suspect‘s consent under the Fourth Amendment is that of objective reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect.” Frohriep, 247 Mich App at 703 (citation and quotation marks omitted). Additionally, just as a suspect may limit the scope of the search at the outset, a suspect may also withdraw consent at any time. Dagwan, 269 Mich App at 343; Powell, 199 Mich App at 498, 500. However, revocation of consent does not operate retroactively to invalidate the search conducted before withdrawal of consent. Powell, 199 Mich App at 497, 499. More fully, this Court has explained the revocation of consent as follows:
[A] suspect may revoke his consent to search at any time. The revocation of the consent to search, however, does not invalidate the search conducted pursuant to the valid consent of the suspect before that consent was revoked. Any evidence obtained during the consensual portion of that search is admissible. However, once the consent is revoked, the police must stop the search unless continuing the search may be justified under some basis other than the suspect‘s consent. Finally, any evidence obtained during the consensual portion of the search may be considered in determining whether a continued search may be justified on some other basis. [Id. at 500-501.]
In this case, the state conduct at issue involves the collection of a blood sample from defendant‘s person and the analysis of that blood to determine defendant‘s blood alcohol content. In defendant‘s view, this conduct may be sub-divided into two distinct searches, such that the analysis of defendant‘s blood is a “search” and she may withdraw her consent at any time before this analysis is conducted. In comparison, the prosecution maintains that, once the blood sample was lawfully removed from defendant‘s body and collected by the police for alcohol analysis, the “search” is complete, meaning that defendant was not entitled to the return of this lawfully seized evidence and she no longer had a reasonable expectation of privacy in the alcohol content of that sample. In short, we must decide whether the analysis of a blood sample, obtained with consent for the purposes of alcohol testing, constitutes a “search” within the meaning of the Fourth Amendment.
A. THE SEARCH AND SEIZURE
We begin our analysis with the unremarkable proposition that drawing defendant‘s blood for analysis constituted a search within the meaning of the Fourth Amendment. Birchfield v North Dakota, 579 US 438; 136 S Ct 2160, 2173; 195 L Ed 2d 560 (2016); Borchard-Ruhland, 460 Mich at 293. Specifically, drawing blood for investigative purposes necessitates a physical intrusion, penetrating beneath the skin into ones veins, thereby infringing on a deep-rooted expectation of privacy that society is prepared to recognize as reasonable. Missouri v McNeely, 569 US 141; 133 S Ct 1552; 185 L Ed 2d 696 (2013); Skinner v R Labor Executives’ Ass‘n, 489 US 602, 616; 109 S Ct 1402; 103 L Ed 2d 639 (1989). However, we note that this search, i.e., this physical intrusion beneath the skin, is completed upon the drawing of blood. Johnson v Quander, 440 F3d 489, 500; 370 US App DC 167 (2006).2 Having consented to the blood
Recognizing that the blood draw was a search, it follows that the evidence seized during the course of the consent search was defendant‘s blood. See State v Perryman, 275 Or App 631, 637; 365 P3d 628 (2015) (“A blood draw conducted by the police is simultaneously a search of a person and a seizure of [evidence]—that person‘s blood.“). This seizure of blood is also within the scope of defendant‘s consent because, when giving consent to a blood draw for alcohol testing, the typical reasonable person would obviously understand that the evidence the authorities intended to seize was a sample of blood for alcohol analysis. See United States v Dichiarinte, 445 F2d 126, 129 (CA 7 1971); Frohriep, 247 Mich App at 703. Moreover, because the blood itself was collected before defendant attempted to withdraw her consent, her withdrawal of consent came too late to invalidate the seizure of her blood. In other words, defendant cannot retroactively withdraw her consent to the blood draw, and her attempt to withdraw consent after the search cannot deprive the police of evidence lawfully collected during the course of the consent search. See Powell, 199 Mich App at 499, 501. Having consented to the search and voluntarily surrendered her possessory interest in the blood sample, there is thus no basis on which defendant can object to the seizure of her blood on March 6, 2015.
B. THE ANALYSIS OF LAWFULLY OBTAINED EVIDENCE
Given that the evidence seized during the valid consent search was defendant‘s blood, the question becomes whether the subsequent analysis of this lawfully obtained evidence constitutes a “search” such that, before the analysis was conducted, defendant could withdraw her consent, prevent the blood alcohol testing, and demand the return of her blood sample. We recognize that “obtaining and examining” evidence may be considered a search, provided that doing so “infringes an expectation of privacy that society is prepared to recognize as reasonable.” Skinner, 489 US at 616 (citations omitted); Jacobsen, 466 US at 123. However, considering the totality of the circumstances,3 we conclude that society is not prepared to recognize a reasonable expectation of privacy in the alcohol content of a blood sample voluntarily given by a defendant to the police for the purposes of blood alcohol analysis. As such, the testing of this lawfully obtained evidence does not constitute a distinct search for Fourth Amendment purposes and any effort to withdraw consent after this evidence has been lawfully obtained cannot succeed.
We are not aware of any binding authority to specifically consider whether consent to blood alcohol testing may be withdrawn prior to the analysis of a voluntarily provided blood sample. However, there is persuasive authority holding that, once a blood sample has been lawfully obtained for purposes of analysis, the subsequent testing of that sample has “no independent significance for fourth amendment purposes.” Dodd v Jones, 623 F3d 563, 569 (CA 8 2010); United States v Snyder, 852 F2d 471, 474 (CA 9 1988).
In reaching this conclusion, the Court in Snyder relied heavily on Schmerber v California, 384 US 757, 768; 86 S Ct 1826; 16 L Ed 2d 908 (1966), a United States Supreme Court decision involving the Fourth Amendment implications of a compelled blood alcohol test. According to Snyder, although Schmerber did not expressly address whether testing of blood is a separate search, the Court in ”Schmerber viewed the seizure and separate search of the blood as a single event for fourth amendment purposes.” Snyder, 852 F2d at 474. See also Vernonia Sch Dist 47J v Acton, 515 US 646, 652; 115 S Ct 2386; 132 L Ed 2d 564 (1995) (characterizing “state-compelled collection and testing” of biological fluids as a singular “‘search’ subject to the demands of the Fourth Amendment“). In contrast, defendant quotes Skinner, 489 US at 616, 618, arguing that collection and testing must be considered separate searches because the Skinner Court referred to the testing of biological samples as a “further invasion” of privacy and referred to “searches” in the plural form when stating that “collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches.” However, the issue in Skinner was a Fourth Amendment challenge to drug-testing of railroad employees, during which the Court weighed privacy interests against government interests for purposes of determining whether a “special need” justified compulsory collection and testing of biological fluids without a warrant. Id. at 620. The Court was simply not considering whether the testing of a biological sample that had already been lawfully seized by law enforcement officials constituted a second and distinct “search” with Fourth Amendment implications independent of the collection of the sample. See State v Swartz, 517 SW3d 40, 49 (Mo Ct App 2017); State v Fawcett, 877 NW2d 555, 560 (Minn Ct App 2016); State v Riedel, 259 Wis 2d 921, 930 n 6; 656 NW2d 789 (2002). In short, we do not read Skinner as deciding the issue now before us, and defendant‘s reliance on Skinner is misplaced. Instead, we find persuasive Snyder‘s recognition that collection and testing of blood are “a single event for fourth amendment purposes.” Snyder, 852 F2d at 473-474.
In rejecting efforts to parse the collection and analysis of blood evidence into separate searches, courts have frequently concluded that there is no objectively reasonable expectation of privacy in a sample lawfully obtained for the purposes of analysis, such that testing of the sample does not involve a search or seizure with Fourth Amendment implications. See State v Hauge, 103 Hawai‘i 38, 51; 79 P3d 131 (2003) and cases therein (“Our review of the case law of other jurisdictions indicates that the appellate courts of several states have ruled that expectations of privacy in lawfully obtained blood samples . . . are not objectively reasonable by ‘society‘s’
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. In this regard we note that the defendant could not plausibly assert any expectation of privacy with respect to the scientific analysis of a lawfully seized item of tangible property, such as a gun or a controlled substance. Although human blood, with its unique genetic properties, may initially be quantitatively different from such evidence, once constitutional concerns have been satisfied, a blood sample is not unlike other tangible property which can be subject to a battery of scientific tests. . . . [Barkley, 144 NC App at 519 (citation omitted).]
From these various persuasive authorities, we draw the basic understanding that blood which has been lawfully collected for analysis may be analyzed without infringing on additional privacy interests or raising separate Fourth Amendment concerns.5
By extension, this reasoning applies to situations in which, in the context of drunk-driving, police procure a blood sample for alcohol testing pursuant to a defendant‘s consent. The individual has consented to the taking of blood, meaning that the sample has been lawfully obtained; and, once the sample is collected pursuant to consent, the analysis of the blood is for the limited purpose of determining blood alcohol.7 Cf. id. In view of the implied consent statute and the reasoning in Perlos, it is apparent that society is not prepared to recognize as reasonable a privacy interest in the blood alcohol content of a sample voluntarily supplied to the police for the purposes of blood alcohol analysis. See id.; see also State v Simmons, 270 Ga App 301, 303; 605 SE2d 846 (2004) (considering Georgia‘s implied consent statute and concluding that consent once given could not be withdrawn); Loveland, 696 NW2d at 166 (“Once a urine sample is properly seized, the individual that provided the sample has no legitimate or reasonable expectation that the presence of illegal substances in that sample will remain private.“). Absent a protected privacy interest, there is no “search” within the meaning of the Fourth Amendment and
In considering whether a defendant may withdraw consent to a blood test after submitting a blood sample for testing, to the extent testing involves the police‘s continued possession of the blood sample, we also emphasize the established rule that when a suspect gives consent to a search and then revokes that consent, the revocation of consent does not “deprive the police of any evidence obtained during the consent search.” Powell, 199 Mich App at 499. In other words, a defendant cannot withdraw consent after the seizure and thereby demand the return of evidence lawfully obtained during the consent search. Id. at 499, 501. More fully, in Jones v Berry, 722 F2d 443, 449 n 9 (CA 9, 1983), the Court rejected the assertion that the defendant could demand return of documents seized during a consent search, explaining:
No claim can be made that items seized in the course of a consent search, if found, must be returned when consent is revoked. Such a rule would lead to the implausible result that incriminating evidence seized in the course of a consent search could be retrieved by a revocation of consent.
This approach is consistent with our decision in Powell and with the decisions of several other courts that have considered the issue. See United States v Mitchell, 82 F3d 146, 151 (CA 71996); United States v Guzman, 852 F2d 1117, 1122 (CA 9 1988); United States v Assante, 979 F Supp 2d 756, 762 (WD Ky 2013); United States v Grissom, 825 F Supp 949, 953 (D Kan 1993); State v Guscette, 678 NW2d 126, 131 (ND 2004); State v Myer, 441 NW2d 762, 766 (Iowa 1989). Quite simply, withdrawal of consent after the search has been completed does not entitle a defendant to the return of evidence seized during the course of a consent search because those items are lawfully in the possession of the police; and, by the same token, a defendant who consents to the search in which evidence is seized cannot, by revoking consent, prevent the police from examining the lawfully obtained evidence.9 In short, the examination
IV. CONCLUSION
Ultimately, this is not a case about withdrawing consent to search; it is a case in which the search to obtain defendant‘s blood has been completed with her consent and defendant nevertheless wishes to prevent the police from examining the evidence—i.e., her blood—which was lawfully collected during the consent search.10 However, once the blood was lawfully procured by the police pursuant to defendant‘s consent, the subsequent analysis of the blood did not constitute a separate search and defendant simply had no Fourth Amendment basis on which to object to the analysis of the blood for the purpose for which it was drawn. Stated differently, once police procured a sample of defendant‘s blood pursuant to her consent, she had no reasonable expectation of privacy in the blood alcohol content of that sample and it could be examined for that purpose without her consent. Consequently, defendant‘s efforts to withdraw consent after her blood had already been collected came too late to invalidate the consent search or to deprive police of the authority to analyze the lawfully obtained blood in their possession to determine defendant‘s blood alcohol content. It follows that defendant was not entitled to suppression of the result of her blood alcohol test, and the trial court did not err by denying defendant‘s motion to suppress.11
/s/ Joel P. Hoekstra
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly