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Date: 10-14-2021

Case Style:

United States of America v. PRANEETH MANUBOLU

Case Number: 20-1871

Judge: Ojetta Rogeriee Thompson

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney: Julia M. Lipez, Assistant U.S. Attorney, with whom Halsey B.
Frank, U.S. Attorney, was on brief

Defendant's Attorney:


Boston, MA - Criminal defense Lawyer Directory


Description:

Boston, MA - Criminal defense lawyer represented defendant with three counts manslaughter and intoxicated-driving related crimes charges.



At 2:48 A.M. on August 31, 2019, Officer Judson Cake of
the Bar Harbor Police Department (BHPD) responded to a single car
1 We take "'the facts in the light most favorable to the
district court's ruling'" when we review "a challenge to a district
court's" decision concerning "a motion to suppress." United States
v. Rodríguez-Pacheco, 948 F.3d 1, 3 (1st Cir. 2020) (quoting United
States v. Camacho, 661 F.3d 718, 723 (1st Cir. 2011)). We will
accordingly narrate the facts based upon the district court order
and any other reliable evidence in the motion to suppress record.
United States v. Simpkins, 978 F.3d 1, 4 (1st Cir. 2020).
- 3 -
crash on Park Loop Road in Acadia National Park (a 19-or-so-mile
road taking people to various sites in the park, which, like Bar
Harbor, is located on Mt. Desert Island just off the coast of
Maine).2 Officer Cake got to the scene swiftly, arriving at 2:56
A.M. He observed Praneeth Manubolu standing on the side of the
road, talking into a cellphone. Off in the woods, was a badly
damaged, two-door, 2019 Dodge Challenger3 -- wrecked despite the
road being dry, in good repair, and free of noticeable defects (it
seems to have hit a tree at high speed). At about 3 A.M., Jerrod
Hardy and Liam Harrington arrived, who were the two other BHPD
officers on the overnight shift. At first glance, it appeared
that the crash had crushed the two male passengers in the back
seat of the car, and the officers could not get them out. The
officers managed to remove a female from the front passenger seat
2 The attentive reader likely noticed that local police
responded to an accident that occurred on federal land. National
Park Rangers (who oversee the park while working for the National
Park Service) would have normally responded, but the Acadia crew
of rangers stopped working between 10 P.M. and midnight at that
time of year. BHPD and the National Park Service had what is known
as a memorandum of understanding, which spelled out that BHPD would
first respond to serious calls when the rangers were off duty and
then call in the rangers if necessary (as it happened that night).
3 So badly damaged was the vehicle that officers had to use
the VIN number to identify Manubolu as the car's owner.
- 4 -
and they began to perform CPR. The scene, as described by multiple
officers, was "horrific."
When the EMTs showed up at 3:12 A.M., it was clear to
the officers that all three passengers had already died. The
rescue operation, according to the officers, turned into an
investigation. Officer Cake had already begun photographing the
scene, and Southwest Harbor Police Department (a neighboring
precinct) sent resources to close down the Park Loop Road.4
Officers Cake and Hardy also questioned and observed Manubolu.
At about 3:24 A.M., National Park Ranger Brian Dominy
made it to the scene. He and the BHPD officers determined the
rangers would take the lead in the investigation, yet the BHPD
officers remained to assist him in the early morning investigation
because, in the words of Officer Cake, Ranger Dominy "didn't really
have any help with him." Only three rangers who could respond
lived on the island and it took them some time to arrive. According
to Ranger Dominy, his team did not usually handle triple fatality
accidents, and he felt "spread kind of thin." He started
photographing and documenting the scene. He and BHPD also called
in a crash scene reconstruction expert. Ranger Dominy needed to
identify the bodies and work with the medical examiner, but he
could not move the bodies until the reconstruction expert arrived.
4 The record does not hint that they helped the investigation
in any other manner.
- 5 -
The two other available rangers showed up later, one at about 4 or
4:15 A.M. and one at 5 A.M. Ranger Dominy put the first (Deputy
Chief Ranger Therese Picard) to work mapping and collecting data
with the crash scene reconstruction expert,5 and he sent the second
(Ranger Darren Belskis) to the hospital to bring Manubolu into
custody once his medical care was completed.6 Ranger Dominy
testified that he did not "clear the scene" until 7 A.M.
B. Figuring Out Manubolu's Inebriation
Once the passengers were clearly beyond rescue and the
ambulance had arrived, Officer Hardy turned his attention to
Manubolu, who was in the ambulance with the EMTs. During his chat
with Manubolu, Officer Hardy observed that Manubolu's eyes were
bloodshot and that there was an "odor of alcohol coming" from his
breath. Manubolu admitted to consuming "two shots of whiskey"
when he had gone to a tavern for dinner and drinks with his friends
5 No one testified to the exact time that the reconstruction
expert showed up, but we can assume he was there by around 4 A.M.
when Ranger Dominy had Deputy Chief Picard help out.
6 The record does not reflect precisely what Officer
Harrington did after he stopped trying to help the dead passengers.
Officer Cake testified that "we" (presumably he and Officer
Harrington because Officer Hardy was with Manubolu and there were
no other BHPD officers) helped Ranger Dominy with the
investigation. The district court also commented that "Ranger
Dominy was the only ranger on the scene for a long period and
required the assistance of the BHPD officers" (emphasis on the
plural). Ranger Dominy remembered Officer Cake assisting him, but
he did not mention Officer Harrington. Officer Harrington did not
testify at the motion to suppress hearing so his involvement
remains unclear on the record before us.
- 6 -
(the passengers in the car) before attending a dance club.7 It
seems that the friends had thereafter walked around "stargazing"
before hopping into Manubolu's car and driving to the campsite in
Acadia where they were supposed to spend the night. Ranger Dominy
knew that bars in Bar Harbor, where the group had been out, closed
at 1 A.M. Given Manubolu's statements about drinking, he estimated
that Manubolu's last drink was at about 12:45 A.M. (presumably
last call).
The EMTs wanted Manubolu to go to the hospital to inspect
him for internal injuries given the "traumatic crash." Manubolu
initially resisted, but finally relented so long as Officer Hardy
went along with him. Before Officer Hardy left, he relayed
information about his conversation with and personal observations
of Manubolu to Ranger Dominy and the two had a brief discussion
about how to get evidence of Manubolu's BAC.
Notwithstanding the evident signs of intoxicated
driving, the responding law enforcement officials did not conduct
any field sobriety tests because of Manubolu's injuries. Officer
Hardy explained that he feared Manubolu might have had a head or
internal injury because Manubolu had a "goose egg-sized bump" below
his right eye. Officer Cake also testified that Manubolu should
have gone to the hospital (in part because the EMTs encouraged
7 As a quick aside, Manubolu had met the passengers on an
app for people interested in group camping trips.
- 7 -
Manubolu to do so), even though, in addition to the possible head
or internal injury, he only "had some cuts on his head" and did
not look "too beat up from" the accident.
Manubolu's injuries also explain why he was not
breathalyzed. Because the BHPD officers did not carry portable
breathalyzers in their cruiser, they would have needed to bring
Manubolu back to the station to conduct one. Given Manubolu's
injuries, the severity of which was unknown, and the EMTs'
recommendation, Officer Hardy concluded that the "goal [was] to
get [him] to the hospital as soon as possible to be medically
treated."8
Without the field sobriety test and without any
breathalyzer, Ranger Dominy and Officer Hardy agreed that Hardy
would go with Manubolu to the hospital to get a blood draw. A
Maine statute at the time permitted officers to take warrantless
blood draws from those suspected of drunk driving in a fatal
accident even without exigent circumstances. See Me. Rev. Stat.
tit. 29-A, § 2522.9 Because of that statute, Ranger Dominy believed
that Officer Hardy, who had assumed physical custody of Manubolu,
"had authority . . . to obtain a blood sample" without a warrant
and without exigent circumstances. Based on Supreme Court
8 There was no breathalyzer machine at the hospital.
9 The statute was held unconstitutional soon thereafter. See
State v. Weddle, 224 A.3d 1035, 1045 (Me. 2020).
- 8 -
precedent, a National Park Service regulation, however, prohibited
warrantless blood draws in national parks like Acadia absent some
exigent circumstance. See 36 C.F.R. 4.23(c)(3).10 Ranger Dominy
was also aware of the rule.
Officer Hardy and Manubolu left for the hospital in Bar
Harbor around 3:53 A.M., arriving at about 4 A.M. Once at the
hospital, Officer Hardy invoked the Maine statute. He ordered the
warrantless blood draw without Manubolu's consent at 4:24 A.M.,
which was about 90 minutes after the crash took place.
C. Attempts (Or Lack Thereof) to Get a Warrant
No matter the federal regulation prohibiting warrantless
blood draws absent exigent circumstances from suspected drunk
drivers in federal parks, Ranger Dominy never discussed getting a
federal or state warrant with any of the BHPD officers.
Ranger Dominy did try to reach the on-call Assistant
United States Attorney (AUSA) at 3:15 A.M. (about an hour before
the warrantless blood draw), but the AUSA did not answer. Ranger
10 The full regulation reads:
Absent exigent circumstances, an operator cannot
ordinarily be required to submit blood samples for the
purpose of determining blood alcohol and drug content
unless it occurs through a search warrant. An authorized
person who has probable cause to believe that an operator
of a motor vehicle within a park area has [driven while
intoxicated] shall get a search warrant, except when
exigent circumstances exist, to obtain any blood samples
from the operator for the purpose of determining blood
alcohol and drug content.
- 9 -
Dominy tried another AUSA soon thereafter, who also did not pick
up. He finally reached a third AUSA at 4:13 A.M. (minutes before
the warrantless blood draw, but after Hardy and Manubolu had left
for the hospital) who said he would try to reach the on-call AUSA.
Officer Cake also tried to reach an on-call Hancock County
Assistant District Attorney, but the person did not answer.
The district court found that Ranger Dominy did not begin
to pursue a warrant until 4:45 A.M. (after the warrantless blood
draw had already occurred) when the on-call AUSA finally phoned
him back. It was only then that Ranger Dominy told the on-scene
team they would need to get a search warrant. To get it under the
protocols then in place, Ranger Dominy would have needed to provide
an affidavit or statement of probable cause to an AUSA, who would
have drafted the warrant for Ranger Dominy to review before it
would have been transferred to a federal magistrate judge to
consider. Rangers had telephonic capabilities, but they could not
call magistrates directly (apparently a previous magistrate judge
had not appreciated receiving direct calls from federal law
enforcement officials). Ranger Dominy did not have a laptop in
his truck, so he would have had to return to his office six miles
from the accident to draft an affidavit.
In accordance with prior state law, none of the BHPD
officers attempted to get a warrant. But, if they had, the state
warrant procedure was quite onerous. The BHPD did not have
- 10 -
electronic or telephonic warrant capabilities, so they would have
had to return to the station to draft and to print the application
and affidavit in support thereof. Every warrant application and
affidavit had to be submitted in writing, be approved by a
supervisor and by the District Attorney's office, and then the
applying officer had to swear any warrant affidavit in front of a
judge or justice of the peace, which at that early hour required
driving far to find an available judicial officer.11 Overall the
process could have taken three to five hours at that time in the
morning (it had taken five hours in a similar case).12
Ranger Dominy testified at the suppression hearing that
he believed at the time that exigent circumstances (in addition to
Maine law) justified the warrantless blood test. He pointed to
the three fatalities, the "time frame of when the bars closed and
when the driver had admitted to Officer[s] Hardy and Cake that he
11 Even if the BHPD officers had telephonic warrant
capabilities, they did not have a list of judges' or justices of
the peace's phone numbers. And they were unsure whether they would
have been able to contact the judicial officers without approval
from their supervisor first anyway.
12 Officer Hardy testified to pursuing a warrant for a similar
crash with serious injuries that occurred between Manubolu's
accident (August 31, 2019) and the motion to suppress hearing for
this case (March 2, 2020). For that crash, he testified that
"[w]ith that recent case law, we opted to go with a search warrant
for the blood draw." The Maine Supreme Judicial Court ruled the
state's warrantless blood draw statute unconstitutional on January
29, 2020. See Weddle, 224 A.3d at 1045. The district court
implied that "recent case law" pointed to the same Supreme Court
doctrine that caused the National Park Service to amend its
regulations, but that is not clear from the record.
- 11 -
had last drank," as well as his overall assessment of the
situation, i.e., arriving at 3:30 A.M. to the wreckage of a
terrible and deadly car accident with a possibly intoxicated
driver. Ranger Dominy felt there was simply too much valid police
work to be done before he could leave the scene to draft a warrant
affidavit. As for the other two rangers who could have drafted an
affidavit (Picard and Belskis), they were working on other tasks;
one was engaged with helping the reconstruction expert and the
other waited at the hospital to take Manubolu into custody.13, 14
D. The Charges and Suppression Motion
The federal government charged Manubolu with three
counts of manslaughter (18 U.S.C. § 1112(a)) and other
intoxicated-driving related crimes.15 In time, Manubolu filed a
13 Nevertheless, Ranger Dominy did get a warrant later once
he contacted the AUSA and finished investigating the scene. Ranger
Dominy wrote up the warrant affidavit after he left the scene at
7 A.M. The warrant came at 10:30 A.M., well after the time of the
blood draw. The government's brief says the district court got the
issuing time wrong. The warrant was time-stamped at 12:09 P.M.
The government, however, has conceded that it is not challenging
the district court's findings of fact, so we'll go with what the
district court said.
14 The record is silent about what Ranger Belskis did after
arriving at the hospital, although we note that he arrived after
the warrantless blood draw had already taken place.
15 The precise charges were one count of knowingly or
intentionally operating a motor vehicle under the influence, see
36 C.F.R. § 4.23(a)(1), one count of operating under the influence
with a BAC over .08, see id. § 4.23(a)(2), and one count of unsafe
operation of a motor vehicle for driving at an unreasonable speed,
see id. § 4.22(b)(1).
- 12 -
motion to suppress evidence from the warrantless blood draw.16 For
reasons we detail more later, the district court agreed,
suppressing the evidence. The government timely appealed and here
we are.
II. Analysis
The only issue on appeal is whether the district court,
as the government contends, erred by suppressing the results of
the warrantless blood draw because no exigent circumstances were
present. The government asserted below, as it does here, that
even if the officers believed they could draw blood under the Maine
statute, exigent circumstances permitted the draw due to the
complexities of the investigation, Manubolu's pressing health
needs, the seriousness of the crash, the resulting fatalities, and
the jurisdiction's elongated warrant processes. In the
16 The hospital independently drew Manubolu's blood and the
government subpoenaed those results. However, the parties agreed
that the court should nonetheless litigate the constitutionality
of the warrantless blood draw ordered by the police because the
parties would still end up litigating its constitutionality even
if the hospital blood draw results were introduced. The hospital
used a procedure to draw the blood that differed from how police
do it, in part because hospitals swab the draw cite with alcohol.
Defendants have apparently often attacked the reliability of BAC
evidence from hospital blood draws. So, even if the hospital
results were admissible, the government would have introduced the
warrantless blood draw ordered by police which comported with
apparently more reliable standards. The district court agreed to
rule on the constitutionality of the test ordered by Officer Hardy
because the government was dead set on introducing it.
Accordingly, the only question before us is the constitutionality
of the warrantless blood draw ordered by Officer Hardy.
- 13 -
government's view, the situation was such that "it would have taken
law enforcement officers" too much time to get a warrant, thereby
compromising the value of the BAC evidence. Manubolu and the
district court looked at the facts less favorably for the
government in ways we need not detail yet. The government's
framework sets the stage for our discussion. But before we begin,
a primer about warrantless blood draws and the Fourth Amendment
would be helpful for understanding the constitutional issue we
must confront.
A. The Fourth Amendment and Warrantless Blood Draws
The Fourth Amendment protects the "right of the people
to be secure in their persons . . . against unreasonable searches"
such that "no Warrants shall issue, but upon probable cause."
Mitchell, 139 S. Ct. at 2534 (plurality opinion) (quoting U.S.
CONST. amend. IV). A blood draw constitutes a search under the
Fourth Amendment for which law enforcement must normally get a
warrant. See Birchfield v. North Dakota, 136 S. Ct. 2160, 2178
(2016). However, exceptions to the warrant requirement exist.
Illinois v. McArthur, 531 U.S. 326, 330 (2001). One of these
exceptions is "exigent circumstances," which means that the "needs
of law enforcement [are] so compelling that a warrantless search
is objectively reasonable under the Fourth Amendment," so long as
- 14 -
the officers have probable cause.17 McNeely, 569 U.S. at 148-49
(quoting Kentucky v. King, 563 U.S. 452, 460 (2011)). That's just
a roundabout way of saying that we permit warrantless searches
when "there is an emergency or other urgent need" getting in the
way of police applying for a warrant. United States v. RodríguezPacheco, 948 F.3d 1, 7 (1st Cir. 2020) (quoting Belsito Commc'ns,
Inc. v. Decker, 845 F.3d 13, 19 n.4 (1st Cir. 2016)).
But, let's spend a little more time narrowing down that
broad definition. Several types of events fit the parameters of
exigent circumstances, but the one we care about right now is the
"imminent destruction or removal of evidence." Id. (quoting Bilida
v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000)).18
Courts often encounter imminent destruction of evidence
issues in drug cases when suspects are caught flushing drugs down
the toilet, see King, 563 U.S. at 461, but it is also the case
that a drunk-driving suspect's BAC is naturally destructive
because it diminishes at approximately .01% to .025% per hour
(depending on an individual's characteristics), see Mitchell, 139
S. Ct. at 2536. Projecting a BAC reading back in time thus
17 Manubolu, with good reason, does not challenge that the
officers had probable cause to believe he was driving drunk.
18 The other categories of exigent circumstances (not
relevant to this appeal) are "hot pursuit of a felon, . . . , the
threatened escape by a suspect, or imminent threat to the life or
safety of the public, police officers, or a person in residence."
Rodríguez-Pacheco, 948 F.3d at 7 (quoting McCleod, 211 F.3d at
171).
- 15 -
seemingly becomes less precise as the hours wear on because the
significant variation in an individual's dissipation rate makes it
harder to work backwards with each passing hour. In other words,
the natural destruction means that "a significant delay in testing
[for BAC] will negatively affect the probative value of the [BAC]
results" because later draws allow for less precise estimates.
McNeely, 569 U.S. at 152. Nonetheless, the dissipation of BAC
does not alone create a "per se exigency."19 Id. at 156.
Courts, of course, know that there is always some delay
between the need for BAC evidence and the actual time of the blood
draw. Id. at 153. For an exigency to exist when a suspect's BAC
is dissipating, other factors must contribute to lengthening that
"inevitable" delay, such that law enforcement could not
"reasonably obtain a warrant" before the "efficacy of the search"
for the suspect's BAC is "significantly undermin[ed]" because the
BAC has dissipated too much; otherwise a warrant is required. Id.
at 152-53. In other words, if circumstances make getting "a
warrant impractical" in the face of dissipating BAC, exigent
circumstances will be present. Id. at 153-54.
Law enforcement must "reasonably believe" that the
circumstances required such "immediate action" that they could not
wait to obtain a warrant. Rodríguez-Pacheco, 948 F.3d at 7
19 The Supreme Court has, however, categorically permitted
warrantless breathalyzer tests. Birchfield, 136 S. Ct. at 2184.
- 16 -
(quoting United States v. Samboy, 433 F.3d 154, 158 (1st Cir.
2005)). We base our determination of that reasonability on how
things happen in the real world, recognizing the difficult and
unpredictable circumstances officers often face. See id. (quoting
Almonte-Báez, 857 F.3d at 31). Succinctly put, we examine the
"totality of the circumstances" when deciding whether an exigency
supports a warrantless blood draw. McNeely, 569 U.S. at 145; see
also Samboy, 433 F.3d at 158 (looking to "case-specific facts"
(quoting United States v. Hidalgo, 747 F. Supp. 818, 828 (D. Mass.
1990))).
The dissipation of BAC is one factor to consider, but
the Supreme Court has also made clear we should examine how the
process of obtaining a warrant can further delay when the blood
draw happens. See McNeely, 569 U.S. at 155. Technology,
specifically telephonic or electronic warrant capabilities, has
made it far simpler and faster for officers to obtain warrants,
especially with drunk-driving cases where the probable cause
statement is somewhat formulaic (suspect had bloodshot or glossy
eyes, emanating odor of alcohol, slurred speech, unsteadiness,
open container of alcohol, etc.). See id. Yet, technological
improvements do not guarantee that an officer can get a warrant,
especially when confronted with a late-night arrest for suspected
drunk driving. Id. Courts must consider the "warrant-application
process," even if a jurisdiction has not updated its procedures to
- 17 -
meet modern capabilities, because it "inevitably take[s] some
time" to complete the warrant and to have a responsible magistrate
review it. Id. There might also be "time-consuming formalities."
Id.
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.
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
20 "When a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices,
'the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest
grounds.'" Marks v. United States, 430 U.S. 188, 193 (1977)
(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). In
Mitchell, Justice Thomas concurred with the result, but argued (as
he had done in dissent in McNeely) that the dissipation of BAC
constitutes exigent circumstances on its own. 139 S. Ct. at 2539
(Thomas, J., concurring). Mitchell's new addition to the canon of
- 18 -
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 incident21 -- while in Schmerber there was
an exigency -- because of the accident, attendant injuries,
investigative needs, and limitations on police resources.22 See
warrantless blood draws is the rebuttable presumption that exigent
circumstances for a warrantless blood draw exist whenever, as was
the case in Mitchell, the suspected driver is unconscious. Id. at
2539. Because that position is "the less sweeping opinion" than
Justice Thomas's push for a per se rule, it is the one we will
consider to be controlling. United States v. Johnson, 467 F.3d
56, 64 (1st Cir. 2006) ("[T]he 'narrowest grounds' approach makes
the most sense when two opinions reach the same result in a given
case, but one opinion reaches that result for less sweeping reasons
than the other. When applied to future cases, the less sweeping
opinion would require the same outcome in a subset of the cases
that the more sweeping opinion would."). Neither party alleges
Manubolu was unconscious (which is good because he wasn't) and
they instead rely on Mitchell for its articulation of the test to
determine whether exigent circumstances are present more generally
for a warrantless blood draw.
21 Technically, McNeely did not reach the question of whether
exigent circumstances existed for the case's particular facts
because the state only argued below that courts should bless a per
se exigency whenever there was probable cause to believe impaired
driving had occurred. See 569 U.S. at 163-64. Nonetheless, the
Court summarized why the trial court found no exigency, which
included the lack of pressing needs and the ready availability of
a prosecutor and judge to expedite the warrant process. Id.
22 At least one law review note has pointed out that Mitchell
broadens how to gauge an exigency by asking only whether some law
enforcement needs "might take priority over a warrant application"
rather than whether any such needs actually inhibited the warrant
process, as the Court implied was the test in McNeely and
Schmerber. Fourth Amendment-Search and Seizure-Warrantless Blood
Draws- Mitchell v. Wisconsin, 133 Harv. L. Rev. 302, 309 (2019)
(emphases added). However, we choose to interpret the Supreme
Court as remaining consistent in its doctrine when it does not
expressly say otherwise. See Grajales v. P.R. Ports Auth., 831
F.3d 11, 30 n.24 (1st Cir. 2016) ("In the event that [a Supreme
Court decision] is no longer good law, it should be for the Supreme
- 19 -
Fourth Amendment-Search and Seizure-Warrantless Blood DrawsMitchell 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
Court to explicitly overrule it" (modification in original)
(quoting Medeiros v. Vincent, 431 F.3d 25, 36 (1st Cir. 2005))).
At the end of the day, as noted, we ask whether a reasonable
officer in the circumstances would have believed there was an
exigency given the facts known, which include both what did inhibit
the warrant application and what could have inhibited the warrant
application. Morse v. Cloutier, 869 F.3d 16, 24 (1st Cir. 2017)
("[T]he bottom-line question is whether a reasonable officer would
have thought, given the facts known to him, that the situation he
encountered presented some meaningful exigency.").
- 20 -
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.
B. Standard of Review and the District Court Ruling
When reviewing the approval of a motion to suppress, we
assess the district court's legal conclusions de novo and factual
- 21 -
findings for clear error.23 Rodríguez-Pacheco, 948 F.3d at 6
(quoting Camacho, 661 F.3d at 723-24). When the motion to suppress
regards "evidence seized on the basis of a warrantless search," we
give the benefit of the doubt to the defendant and the government
must bear its burden of proving the search was constitutionally
legitimate. Id. (quoting United States v. Delgado-Pérez, 867 F.3d
244, 250 (1st Cir. 2017)).
After holding a hearing on the motion to suppress at
which Officers Cake and Hardy and Ranger Dominy testified,24 the
district court concluded as a matter of law that there was no
exigency.25 We spell out the court's reasons and the parties'
23 Remember, though, that the government has not challenged
any of the district court's factual findings.
24 At the motion to suppress stage, the government in part
contended the warrantless blood draw should not be suppressed
because Officer Hardy took it in compliance with then-applicable
Maine law and because the state and the federal government had
concurrent jurisdiction to prosecute the crime. In other words,
because the blood draw was OK under Maine law and Maine had some
sort of jurisdiction, the evidence should be fine in federal court.
The district court disagreed because the government sought to
introduce the evidence in a federal prosecution in federal court
pursuant to federal rules of evidence. The draw thus needed to be
admissible under federal constitutional law, no matter what the
state law was or whether there was concurrent jurisdiction.
Moreover, the national park regulations only permitted state law
to govern if the National Park Service regulations did not address
the issue (which they clearly did). See 36 C.F.R. §§ 4.2(a),
4.23(c). But the government has not pursued that issue on appeal,
so we need not worry about it.
25 The district court also concluded that the good faith
exception (which the government also argued below), which would
have allowed the government to avoid suppression even if the
officers violated the Fourth Amendment, did not apply because
Officer Hardy had no reasonable basis to rely on the then-existing
- 22 -
arguments in a little bit when we explain our application of the
Mitchell factors and why we analyze the "totality of the
circumstances" differently. McNeely, 569 U.S. at 145.
C. Subjective Intent and the Exigency Analysis
Before we delve into our reasoning, we briefly detour to
address the district court's (and Manubolu's) heavy reliance on
Ranger Dominy and Officer Hardy's subjective beliefs that BHPD
could conduct a warrantless blood draw pursuant to Me. Rev. Stat.
tit. 29-A, § 2522. Indeed, the district court felt the only
explanation for why law enforcement did not pursue a warrant was
"obvious: that the officers on the scene did not believe a warrant
was necessary due to" Maine law. Ultimately, though, as the
government contends, the officers' intent to rely on the statute
does not weigh as heavily as the district court and Manubolu think
it does when assessing whether or not exigent circumstance existed.
This is so because regardless of whether Ranger Dominy
and Officer Hardy intended to rely on the Maine statute, see
Brigham City v. Stuart, 547 U.S. 398, 404-05 (2006) (holding
subjective intent of officers does not control exigency analysis),
as long as an objectively reasonable officer in their situation
would have reasonably believed there to be exigent circumstances,
Maine statute in good faith given controlling Supreme Court
precedent. The government has not appealed that portion of the
ruling so we need not detail or consider it.
- 23 -
then the warrant requirement would not have applied, Morse v.
Cloutier, 869 F.3d 16, 24 (1st Cir. 2017) (citing Almonte-Báez,
857 F.3d at 32-33). Although the district court's conclusion
rested in part on the officers' subjective intent,26 the court also
weighed, at least to some degree, certain factors faced by the
officers, such as pressing health and investigative needs, see
Mitchell, 139 S. Ct. at 2537, and the drawn-out warrant procedures,
see id. at 2539 (quoting McNeely, 569 U.S. at 155). The court
found them wanting, hinting it considered the late-night crash to
be a "fairly ordinary" drunk-driving event. Therefore, we turn to
our analysis of the Mitchell factors and why we disagree with the
court's assessment.
D. Determining Whether Exigent Circumstances Existed
Recall that the second part of the Mitchell test for
exigent circumstances instructs us, given dissipating BAC, to
examine whether there were any pressing health needs -- such as
transporting a suspect to the hospital or caring for other injured
individuals at the scene -- or investigative needs -- such as
documenting evidence -- "that would [have] take[n] priority over
26 Even if we did not consider Officer Hardy to be acting as
a federal agent, the warrantless blood draw would still have been
inadmissible absent exigent circumstances. See Elkins v. United
States, 364 U.S. 206, 208, 223 (1960) (where state officers seize
evidence in violation of the Fourth Amendment as incorporated by
the Fourteenth Amendment and hand it over to federal officers on
a "silver platter," the evidence is excluded in the federal
prosecution over timely objections).
- 24 -
a warrant application." 139 S. Ct. at 2537. Recall too, that
Mitchell thereafter incorporates McNeely's point that the time it
takes to get a warrant on its own factors into the exigent
circumstances analysis. See id. at 2539 (quoting McNeely, 569
U.S. at 155). Ranger Dominy testified that he believed there were
exigent circumstances based on the fatalities, the nature of the
crash, Ranger Dominy's knowledge of when the local bars close, and
Manubolu's statements about last consuming alcohol sometime before
1 A.M. The district court disagreed, pointing to, in its
assessment, the lack of pressing health needs and the government's
responsibility for crafting the lengthy warrant procedures.
i. Pressing Health Needs
Specifically as to pressing health needs, the district
court noted (and Manubolu agrees) that the officers had little to
worry about. The EMTs relieved them of emergency rescue
responsibilities 16 minutes after Officer Cake first arrived.
Moreover, the EMTs treated Manubolu (who had relatively minor
injuries consisting of a goose-egg bump and some scrapes on his
face). And, as a kicker, the district court pointed out that the
officers knew the other three passengers were dead by the time the
EMTs got there. In other words, there were no health emergencies
which would have made reasonable officers think they did not have
time to get a warrant (although Manubolu's injuries did prevent
the officers from taking him to the station for a constitutionally
- 25 -
acceptable warrantless breathalyzer test). See Birchfield, 136 S.
Ct. at 2184.
Despite the government's suggestion that Manubolu's
hospitalization alone created an exigency, the district court's
analysis was proper, at least so far as it goes. Cf. State v.
Michael, No. 2019-KK-01273, 2020 WL 3867127, at *7-8 (La. July 9,
2020) (per curiam) (finding exigency when a hit-and-run accident
caused serious injury to two people, created two separate scenes
requiring police investigation, and required the defendant be
transported to a hospital for medical attention). But, since
Officer Hardy accompanied Manubolu to the hospital (Manubolu,
remember, refused to go to the hospital without Officer Hardy),
one officer could no longer help investigate or go back to the
station to begin the warrant process. So, although health
emergencies alone here would not necessarily have justified the
exigency, the injuries and fatalities still play into the calculus
by thinning out the police resources available to investigate the
scene. See Schmerber, 384 U.S. at 770-71. We move on.
ii. Investigative Needs
The district court believed (and Manubolu once more
concurs) that Ranger Dominy and the other officers could have
prepared a warrant while Manubolu headed off for medical care.
Implicit in that finding is the view that the officers should have
deprioritized documenting the evidence or questioning Manubolu
- 26 -
before he headed to the hospital so as to prepare a warrant (or,
less favorably, that the officers were doing nothing and should
have been drafting a warrant affidavit). Manubolu also suggests
there were enough officers on scene (a "panoply" in fact, as the
district court phrased it) that someone could have pursued the
warrant. The government contends Ranger Dominy and the other
responding officers did not face such a routine DUI stop, like in
McNeely, that would have permitted them time to apply for the
warrant before drawing blood at 4:24 A.M. because the officers
simply had too much to do given the grisly accident site and three
fatalities.
If officers have to "preserve evidence at the scene" of
a drunk-driving accident, it weighs in favor of finding an exigency
justifying a warrantless blood draw. Mitchell, 139 S. Ct. at 2538;
Schmerber, 384 U.S. at 771. The district court seems not to have
engaged robustly with the investigative factor, so we must look to
the record to see what we can figure out, always remembering that
it is the government's burden to prove an exigency supported a
warrantless blood draw. Rodríguez-Pacheco, 948 F.3d at 6.
When government resources are diverted to investigating
a car accident, courts have tended to find an exigency existed to
justify a warrantless blood draw. See, e.g., State v. Fischer,
875 N.W.2d 40, 46-48 (S.D. 2016) (extensive evidence
documentation, including finding and identifying severed limbs,
- 27 -
"required immediate attention" sufficient to divert officers from
applying for a warrant when the defendant's pressing medical needs
necessitated an immediate blood draw). This is particularly true
where the responding officers are all busy investigating. See
Schmerber, 384 U.S. at 770-71 (sole responding officer faced
"emergency" justifying warrantless blood draw considering
investigative needs); Fischer, 875 N.W.2d at 46 (all available
officers on scene taking part in the investigation contributed to
a finding of exigency when pressing medical needs also were
present).
As of 3:12 AM when the EMTs arrived, the only three onduty BHPD officers (Cake, Hardy, and Harrington) were on scene,
which, remember, was described as "horrific." Once Ranger Dominy
made it at 3:24 A.M., Officer Cake stayed to assist for hours
because there was no one else available to help Ranger Dominy with
all of the tasks, especially once Officer Hardy went with Manubolu
to the hospital (Ranger Dominy even testified to feeling spread
thin). Even once the other two available rangers arrived, Ranger
Dominy immediately asked them to help investigate. At 4 A.M.,
Ranger Dominy put Deputy Chief Picard to work assisting the BHPD
officers mapping and collecting data about the crash with the
reconstruction expert. At 5 A.M., Ranger Belskis arrived and
Ranger Dominy at once sent him to the hospital to wait to arrest
Manubolu.
- 28 -
Even if the scene was not chaotic, the record indicates
the officers were plenty occupied with a variety of tasks. Ranger
Dominy and the others had to document evidence, which took long
enough that Ranger Dominy did not clear the scene until 7 A.M.
The three fatalities did not require the officers to handle any
health emergencies, but the deaths forced the officers to
coordinate with a medical examiner and to spend time trying to
identify the victims. Because of the nature of the crash, the
officers had to collect and map evidence before the crash
reconstruction expert arrived; they also had to work with the
reconstruction expert when he arrived. All the while, Ranger
Dominy was aware that the alcohol in Manubolu's blood was
dissipating given his estimation that Manubolu had last consumed
alcohol around 1 A.M., even if he did not (and could not) testify
as to when he estimated the BAC evidence would precisely be
destroyed or would become an unreliable barometer of Manubolu's
intoxication at the time of the crash. See Mitchell, 139 S. Ct.
at 2536 (noting the "biological certainty" that BAC dissipates
between .01% and .025% an hour depending on a person's anatomy).27
27 Even if Manubolu's last drink was actually right before
the crash (meaning there was more time before the blood draw would
give imprecise BAC evidence), Ranger Dominy would have had no way
to know or to estimate Manubolu's precise BAC at the time of the
crash simply by observing him. Without that knowledge, Ranger
Dominy could not have known (or estimated) at what time a blood
draw would have produced unreliable BAC evidence, so he could not
know exactly how long he had to secure a warrant. All Ranger
- 29 -
Much of this investigative work came after the
warrantless blood draw at 4:24 A.M., but it is helpful context for
understanding why Manubolu's crash was far from the routine type
for which it would have been easy for the officers to step away to
apply for a warrant. See id. at 2538 (citing McNeely, 569 U.S. at
156). The nature of the crash and the fact that the officers were
not sitting around twiddling their thumbs weighs in favor of there
being exigent circumstances.28 See id. at 2537; McNeely, 569 U.S.
at 152 (citing Schmerber, 384 U.S. at 770-71); cf. State v. Hay,
946 N.W.2d 190, 197-98 (Wis. Ct. App. 2020) (refusing to find
exigent circumstances when the two on-scene officers could have
begun the warrant process while waiting for a third officer to
arrive, but instead performed no investigative duties while
waiting). The Supreme Court has indicated that courts should not
force officers into this "grim dilemma" where they have to choose
between documenting evidence and applying for a warrant. Mitchell,
139 S. Ct. at 2538. Given the investigative needs, a reasonable
officer in the circumstances present here could reasonably have
thought, in combination with the dissipating BAC and the realities
of the extended warrant process found in this record, that he would
Dominy knew was that the BAC was dissipating, and he guessed that
it had been dissipating for at least two hours prior to the crash.
28 As summarized, officers were dealing with identifying the
fatalities, mapping data for the crash reconstruction, documenting
evidence, dealing with Manubolu at the hospital, and coordinating
with the medical examiner.
- 30 -
not get a warrant before the BAC evidence had lost significant
evidentiary value. See McNeely, 569 U.S. at 152.
iii. Warrant Process
Notwithstanding the investigative needs resulting from
the terrible crash, McNeely teaches us that no exigency can result
from the totality of circumstances so long as an officer could
have reasonably obtained a warrant without "significantly
undermining the efficacy of the [BAC] search." 569 U.S. at 152.
In other words, if the officers had time to get a warrant before
the dissipation of the BAC even in the face of a tough crash scene
with many investigative responsibilities, then they should have
gotten a warrant. Id.
The district court, which Manubolu again follows,
fretted (not without good reason) that a late-night or early
morning crash like Manubolu's could "always [lead to] exigent
circumstances," thus making McNeely "irrelevant" if the
government's warrant process "mean[t] that an officer will never
(or very rarely) be able to secure a warrant before evidence of
intoxication has disappeared or become unreliable." The court did
not want to give a stamp of approval to this warrantless blood
draw for fear of creating a per se exigency in all similar
circumstances. The court paid particular attention to the AUSAs'
failures to answer their phones (especially the on-duty AUSA
specifically charged with picking up the phone!) and to Ranger
- 31 -
Dominy's inability to reach anyone until 4:45 A.M. The third AUSA
whom Ranger Dominy called, remember, had taken nearly an hour to
connect the ranger to the on-call AUSA.29 That third AUSA did not
immediately help with the warrant process, suggesting to the court
that the AUSAs did not "treat[] the need for a warrant as urgent."
Additionally, the court faulted the government for not
providing an explanation for why the warrant process would have
required Ranger Dominy to return to his office to draft an
affidavit before sending it to the AUSA, who would then have
drafted a warrant application before sending it back to Ranger
Dominy. Only then (finally) would Ranger Dominy have submitted
the application to a magistrate judge. The court was particularly
perplexed because "the circumstances justifying a blood draw in
this case do not appear to be overly complicated." By then citing
to the Federal Rules of Evidence permitting telephonic and
electronic warrants, as well as to McNeely, which recognized that
the availability of those procedures could play into the exigency
29 We pause here quickly to observe a discrepancy in the
record -- one that does not alter any of our analysis, but is worth
noting nonetheless. According to the incident report, the second
and third AUSAs weren't called until 4:13 A.M., and Ranger Dominy
received a call from the on-call AUSA about a half hour later,
around 4:45 A.M. But the district court reported in its narrative
"Order on Motion to Suppress" -- but not in that Order's factual
findings -- that the third AUSA "attempted to contact [the oncall] AUSA . . . at 3:53 A.M." However, 3:53 A.M., recall, is the
time that Officer Hardy left the scene with Manubolu. That time
does not appear in the record in relation to any of the calls to
the AUSAs.
- 32 -
calculation, the court concluded that the unnecessarily
complicated and lengthy procedure should not weigh in the
government's favor because it, "to a significant extent,"
controlled "the length of that process."
While the record does not provide an exact time for how
long the federal warrant process normally would have taken, it
took three and a half hours for Ranger Dominy to get the warrant
that morning, and it would have taken the BHPD anywhere between
three to five hours to navigate its warrant process without
electronic or telephonic capabilities. The government, on the
other hand, argues that the lengthy, antiquated warrant processes,
as well as the unresponsive AUSAs, added to the exigency,
especially at the witching hour when the crash occurred.30
30 The district court faulted the government for designing a
lengthy warrant procedure and for failing even to adhere to its
own policies. Manubolu picks this up by implying the government
created the exigency through its "failure to adhere to its [own]
policies and procedures to obtain a warrant[, which] requires
suppression." But Manubolu cites to two district court cases that
are inapposite. In the first, the police "deliberately" avoided
getting a warrant, even though they had advance knowledge of an
impending search and arrest with plenty of time to secure a
warrant. See United States v. Khut, 490 F. Supp. 2d 35, 39-40 (D.
Mass. 2007); see also United States v. Curzi, 867 F.2d 36, 43 n.6
(1st Cir. 1989) ("Circumstances deliberately created by the police
themselves cannot justify a warrantless search."). Even Manubolu
does not believe "the AUSA's failure to answer an early-morning
phone call" could "be regarded as a 'deliberate' act to create an
exigency." The second case on which Manubolu relies suppressed
the warrantless blood draw by a national park ranger because the
officer did not follow well-established procedures to get a warrant
quickly and there were no other factors suggesting that an exigency
prevented the officer from doing so. See United States v. Jubor,
- 33 -
McNeely, contrary to the district court's reading,
understood that improvements in the warrant process did not mean
every jurisdiction would have a seamless application structure,
especially for crashes around 3 A.M. 569 U.S. at 155
("[I]mprovements in communications technology do not guarantee
that a magistrate judge will be available when an officer needs a
warrant after making a late-night arrest."). Ranger Dominy did
not control the AUSAs and he did try to contact them three times
in one hour while responding to a triple-fatality car crash. He
did not control the warrant application procedures that prevented
him from reaching out to the magistrate directly or from drafting
a quick warrant application in his cruiser without the approval of
an AUSA. By the time Manubolu was heading off to the hospital to
get medical treatment, a reasonable officer in Ranger Dominy's
shoes might have worried he would not hear from an AUSA within
sufficient time to get a warrant and a blood draw before Manubolu's
body destroyed the evidence (as an aside, a reasonable officer
might have also thought the medical treatment would have further
delayed a blood draw or negatively affected the BAC evidence).
See Mitchell, 139 S. Ct. at 2537-38. McNeely does not require law
enforcement to pursue a warrant until the very last moment before
No. 19-po-631, 2019 WL 5064680, at *6 (D. Md. Oct. 9, 2019). The
facts faced by the officers for Manubolu's crash were much
different.
- 34 -
they estimate that the BAC will have fully dissipated. 569 U.S.
at 164 (cumbersome warrant procedures might justify a warrantless
blood draw even for a routine DUI arrest). Nor does it mandate
that jurisdictions have updated, faster, and more efficient
warrant procedures, even though the opinion (fairly read) strongly
suggests that jurisdictions should take advantage of such
technological advances if they are able to do so.31 See id.; State
v. Gerety, 399 P.3d 1049, 1052 (Or. Ct. App. 2017) (finding it
"troubling" that the jurisdiction had not adopted a telephonic
warrant procedure given technological advances, but acknowledging
that Supreme Court authority doesn't require adoption of more
efficient warrant procedures). We therefore cannot put an exact
timeframe on how long is too long for a warrant process to take
before it becomes a per se exigency.
While we are sympathetic to the district court's concern
about permitting "end-runs" around McNeely, we believe that the
existing totality of the circumstances framework adequately
31 We reiterate this lesson from McNeely. Jurisdictions
should create streamlined warrant procedures, especially for
relatively simple applications like those for a BAC blood draw.
569 U.S. at 154-55. Doing so will protect both the constitutional
rights of the defendant and the safety of the public by ensuring
prosecutors have the best evidence to prosecute drunk drivers.
See Mitchell, 139 S. Ct. at 2531 ("recount[ing] the country's
efforts over the years to address the terrible problem of drunk
driving" (citing Birchfield, 136 S. Ct. at 2160)). And we
encourage district courts to work with law enforcement to establish
such systems.
- 35 -
protects against such concerns. If Ranger Dominy had been able to
quickly and easily apply for a warrant "without significantly
undermining the efficacy of the search," then we would have
required a warrant. McNeely, 569 U.S. at 152. That was not the
case at the time of Manubolu's crash. On the "spectrum" of
exigencies, this one is closer to the car crash in Schmerber than
it is to the routine DUI stop in McNeely. See Mitchell, 139 S.
Ct. at 2533.
III. CONCLUSION
Contrary to the district court's concern, we are not
creating a per se exigency for late-night DUI stops because our
conclusion does not rest solely on the unnecessarily long warrant
procedure. Cf. Commonwealth v. Trahey, 228 A.3d 520, 535-36 (Pa.
2020) (overturning Superior Court's finding of exigency in part
because of tension with prohibition of per se exigencies, where a
primary factor in the Superior Court's decision was that obtaining
a warrant would have taken longer than two hours). Given the
totality of the circumstances, the government has met its burden
to show it was reasonable for Ranger Dominy to think exigent
circumstances existed when pressing investigative responsibilities
took his and other officers' attention, when he could not reach
the on-call AUSAs to begin the telephonic warrant process, when
the federal and state warrant procedures were protracted, when he
reasonably estimated that the evidentiary reliability of
- 36 -
Manubolu's BAC decreased as time wore on, and when health needs
and other resource limitations prevented officers from immediately
applying for a warrant. See Mitchell, 139 S. Ct. at 2537. In
other words, we conclude the district court misapplied the law to
the facts. See Rodríguez-Pacheco, 948 F.3d at 6.
We reverse and remand with instruction to deny the motion
to suppress.
-Dubitante Opinion Follows-
- 37 -
KAYATTA, Circuit Judge, dubitante. To decide this case,
we need answer two questions: How long would a reasonable officer
have thought it would take to get a warrant, once it occurred to
the officers at approximately 3:15 a.m. that there was probable
cause to get a blood alcohol concentration (BAC) reading?32 And
how much time could pass before the dissipation of alcohol in the
blood would significantly undermine the ability to determine BAC
at the time of the accident?
The record reveals that getting a state warrant in the
early morning hours was known to take three to five hours. The
record does not directly reveal how long officers could expect to
wait for issuance of a federal warrant. But it does describe in
detail the steps involved, and we know that it took over six hours
from the time when an AUSA answered Dominy's call until a warrant
was issued.33 So I see no reason to think that, under procedures
in place at the time of the accident, a federal warrant could have
been obtained more quickly than could a state warrant. And given
that we cannot decide the case without some estimate of the
32 Ranger Dominy first called the on-duty AUSA around 3:15
a.m. Also around that time, BHPD Officer Hardy joined Manubolu in
the back of the ambulance, where he noticed an odor of alcohol
coming from Manubolu.
33 An AUSA answered Dominy's call at 4:13 a.m. I follow the
majority in using 10:30 a.m. as the time the warrant was issued.
- 38 -
expected time required to get a warrant, an estimate of three to
five hours seems reasonable on this record.
What is entirely missing from the record is the amount
of time that Hardy could wait before BAC dissipation proved
problematic. The majority tries to close this evidentiary gap by
pointing to the majority opinion in Mitchell v. Wisconsin, which
states that "it is 'a biological certainty' that '[a]lcohol
dissipates from the bloodstream at a rate of 0.01 percent to 0.025
percent per hour." 139 S. Ct. 2525, 2536 (2019) (alteration in
original) (quoting Missouri v. McNeely, 569 U.S. 141, 169 (2013)
(Roberts, C.J., concurring)). Mitchell supports this statement of
scientific fact by quoting from Chief Justice Roberts' concurring
and dissenting opinion in McNeely. But the Chief Justice made no
claim in McNeely that that dissipation rate was a "biological
certainty." Rather, his opinion simply states that dissipation
itself is a biological certainty. He then cites a forensic
handbook for the proposition that "[a]lcohol dissipates from the
bloodstream at a rate of 0.01 percent to 0.025 percent per hour."34
34 The opinions in both cases express the rate of dissipation
as a percentage (e.g., "0.01%"). This can be confusing because
two percentages are implicated: The percentage of alcohol in the
blood and the percentage of reduction in that percentage. For
clarity, in describing dissipation I refer to the BAC level, such
that a drop from a BAC level of 0.02 to 0.01 is a drop of 0.01,
not "0.01%." See, e.g., William Ulwelling & Kim Smith, The PEth
Blood Test in the Security Environment: What It Is; Why It Is
Important; and Interpretive Guidelines, 63 J. Forensic Scis. 1634
(2018), https://doi.org/10.1111/1556-4029.13874 ("BAC[] declines
- 39 -
McNeely, 569 U.S. at 169 (citing Stripp, Forensic and Clinical
Issues in Alcohol Analysis, in Forensic Chemistry Handbook 440 (L.
Kobilinsky ed. 2012)).
Nor does that figure appear to be generally accepted --
even by the Court. The majority in McNeely itself uses a different
range for the rate of reduction of BAC: "0.015 percent to
0.02 percent per hour once the alcohol has been fully absorbed,"
based on trial testimony in that case. Id. at 152. The majority
also acknowledges that "[m]ore precise calculations of the rate at
which alcohol dissipates depend on various individual
characteristics . . . and the circumstances in which the alcohol
was consumed." Id. (citing Stripp, Forensic and Clinical Issues
in Alcohol Analysis, in Forensic Chemistry Handbook 437—41
(L. Kobilinsky ed. 2012)).35
As to the subject of evidentiary impairment, the
difference between the McNeely rate and the Mitchell rate is huge.
at an average rate between 0.015 (± 0.002) g/100 mL/h blood for
men and 0.017 (± 0.003) g/100 mL/h for women.").
35 Other readily available sources state that the rate of BAC
dissipation is 0.015 grams/100 milliliter/hour, Alcohol Metabolism, Bowling
Green State Univ., https://www.bgsu.edu/recwell/wellness-connection/alcoholeducation/alcohol-metabolism.html (last accessed Aug. 30, 2021), "between
.015 percent and .020 percent BAC per hour," Hours to Zero BAC,
https://www.selfcounseling.com/help/alcohol/hourstozerobac.html (last
accessed Aug. 30, 2021), and "about 0.015 percent an hour," Watch Your BAC
(Blood Alcohol Content): Decide Before You Drive, District of Columbia
Metropolitan Police Dep't, https://mpdc.dc.gov/page/watch-your-bac-bloodalcohol-content-decideyou-drive (last accessed Sept. 8, 2021).
- 40 -
Under the former, each passing hour introduces an uncertainty of
only 0.005, while under the latter the uncertainty increases by
0.015 each hour, a 300% difference. Under the former, an original
BAC of 0.1 could drop to somewhere between 0.04 and 0.055 after
three hours, while under the latter the same original BAC level
could drop to anywhere between 0.025 and 0.07 after the same three
hours.
All of this suggests to me that a remand would be very
useful because it might let doctors or scientists weigh in on the
correct dissipation range rather than relying on judges and Google
searches. But given the pronouncement in Mitchell of "a biological
certainty," I understand why the majority uses the Mitchell range,
so I will do the same.
The potentially bigger problem is that the record also
fails to contain any information concerning how quickly BAC
dissipation would impair the government's ability to use a blood
draw reading to ascertain BAC at a time prior to the blood draw.
The majority makes no effort to fill in this gap. Yet the majority
must have some estimate in mind. After all, if the officers could
have waited until 8:30 a.m., for example, and still received the
needed evidence from a BAC measurement, then they may have had
time to get a warrant, given that Deputy Ranger Belskis was
available beginning at approximately 5:00 a.m.
- 41 -
Deciding this case turns on filling this gap in the
record. The traditional way to deal with a lack of such
significant information is to hold it against the party with the
burden of proof. Alternatively, we might remand the case so that
expert testimony could shed light on how the passage of time
affects the ability to reliably estimate BAC at a time prior to
the blood draw. As discussed above, remand would be my preference.
To instead decide this case on the existing record, we
must do some math, based on the range of Mitchell dissipation rates
accepted by the majority. If the McNeely range (a decrease of
0.01 to 0.025 per hour) is correct, then the efficacy of the BAC
had already diminished materially by the time Hardy got Manubolu
to the hospital. Its efficacy would have diminished substantially
further long before a warrant could have been available. This
remains true even if the officers had started trying to get a
warrant right away, and even if the sleeping AUSA had been reached
on the first call. For example, suppose Manubolu had a BAC of
0.05 at 4:50 a.m. (two hours after the accident).36 That would
tell you that the BAC at the time of the accident was between 0.07
(two hours at a dissipation rate of 0.01 per hour) and 0.10 (two
hours at a dissipation rate of 0.025 per hour). That is a
36 Blood alcohol level at the time of the accident, not the
earlier time when Manubolu last drank, is the relevant time given
the potential charge of causing deaths by operating a vehicle while
inebriated.
- 42 -
substantial difference, with one figure below the legal limit for
driving and the latter well above the limit. And if one waited
until 5:50 a.m., the range of uncertainty would increase
substantially.37
I suppose it is possible that experts might have a way
to reduce the uncertainties created by the wide range in possible
dissipation rates. This is another reason why I would likely
remand if left to my own devices. But since we are not remanding
for such a determination, we should make clear that the outcome of
this case really does not turn on most of the facts and discussion
contained in the majority opinion. Even if there had been a dozen
officers with nothing to do, probable cause to seek a BAC reading
was ascertained at 3:15 a.m., so receipt of a warrant before
6:15 a.m. (at the earliest) would have been quite unlikely.
As a practical matter, if a breathalyzer is not
available, and a blood draw is the only option, then a warrant
will not be required unless it can be obtained much sooner than
three hours after the accident. As to how much sooner, we need
more of a record to say.
The district court expressed concern that accepting time
delays in procuring warrants as an exigency could render McNeely
largely a dead letter. But McNeely itself provides that "exigent
37 A reading of 0.025 at 5:50 a.m. could suggest that
Manubolu's BAC at 2:50 a.m. was anywhere between 0.055 and 0.1.
- 43 -
circumstances justifying a warrantless blood sample may arise in
the regular course of law enforcement due to delays from the
warrant application process." 569 U.S. at 156. As a practical
matter, Mitchell already greatly reduces McNeely's force when a
breathalyzer is unavailable and warrant procurement takes more
than an hour or two. There will nevertheless remain many cases in
which breathalyzers are available and/or speedy warrant
procurement is available. Mitchell, 139 S. Ct. at 2537 ("[E]ven
if the constant dissipation of BAC evidence alone does not create
an exigency, Schmerber shows that it does when combined with other
pressing needs." (emphasis in original) (citations omitted)). In
such cases, McNeely will still prohibit blood draws without a
warrant. For the reasons described above, though, this is not
such a case.
Nor is this to say that the mere fact that BAC levels
dissipate per se negates the need for a warrant. Rather, it is to
say that if the only choice is between getting a BAC reading
without a warrant or losing a usable BAC reading due to three
hours' delay in waiting for a warrant, police need not get a
warrant, assuming the scientific facts are as Mitchell and our
limited record indicate.
I do agree with my colleagues that the district court's
sense of pique regarding the diligence of the on-duty AUSAs and
the cumbersome nature of the warrant procurement procedures
- 44 -
available at 3:00 a.m. in rural Maine is beside the point. One
may well wonder why Maine state and federal courts do not have
speedier procedures for obtaining warrants than what is described
in the record in this case. But Manubolu cites no authority for
applying the exclusionary rule as a means of forcing courts and
legislatures to update their warrant procurement procedures. And
it would seem that such an approach would involve punishing the
public so as to coerce persons other than the police into making
policy choices that they likely already have some incentive to
make. In any event, without developed argument for such an
extended application of the exclusionary rule, I would deem the
suggestion waived.
For the foregoing reasons, while I do not dissent and
indeed strongly suspect that no warrant was required in this case,
I do think the preferable course would be to vacate and remand for
further factfinding on the crucial issue of how much time can pass
before the efficacy of a BAC reading is undermined.

Outcome: We reverse and remand with instruction to deny the motion to suppress.

Plaintiff's Experts:

Defendant's Experts:

Comments:



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