Monday, May 30, 2011

DUI Appeal - Florida Blood Draw Violates Search Warrant Law

The below case involves a blood draw that was taken after a search warrant was issued following a DUI arret. In State of Florida v. Geiss, --- So.3d ----, 2011 WL 2097694 (Fla.App. 5 Dist.), the trial court suppressed the blood draw because it believed that the draw violated the Florida Right of Privacy, the Implied Consent Statute, and the Search Warrant provisions of Florida law.

On appeal, the court found that the Florida constitutional right of privacy was to be read as concomitant to the 4th amendment right against unreasonable search and seizure. Since a blood draw was acceptable under the 4th amendment (see Schmerber) the court held that it did not violate the right of privacy either.

However, the court did find that the search warrant violated the statutes on search warrants. At the time of the application for the warrant, the defendant was only charged with a misdemeanor (his full background was unknown):

"The trial court also found that the blood draw was not authorized by the warrant statute, section 933.02, Florida Statutes, because blood is not “property” used as a “means to commit” a crime. In addressing this issue, we should first clarify that although this case was ultimately filed as a felony case based upon Geiss's prior DUI record, the affidavit for the search warrant did not set forth Geiss's complete record, and only averred that Geiss possessed one prior DUI conviction. So, the affidavit alleged probable cause to believe that Geiss had violated the misdemeanor DUI statute. This is significant because section 933.02, Florida Statutes, only allows the state to secure a warrant to seize “property ... used as a means to commit” a misdemeanor. § 933.02(2)(a), Fla. Stat. (2010). By contrast, the statute also authorizes the state to secure a warrant for “property [that] constitutes evidence relevant to proving that a felony has been committed.” § 933.02(3), Fla. Stat. (2010); see also, Bordo, Inc. v. State, 627 So.2d 561, 562–63 (Fla. 4th DCA 1993) (“Thus, property used to commit any crime—whether felony or misdemeanor—may be seized under a warrant; while property merely constituting relevant evidence of a crime may be seized only if the suspected crime is a felony.”). Because the affidavit below only alleged facts supporting probable cause for a misdemeanor DUI, the original issuing magistrate and the trial court reviewing the warrant in the case below properly considered only whether blood constituted “property ... used as a means to commit” the crime of DUI in this case. See, e.g., Martin v. State, 906 So.2d 358 (Fla. 5th DCA 2005) (limiting review to four corners of search warrant to determine whether sufficient probable cause existed). We agree with the trial court that it was not."
Continuing with its analysis, the appeals court then explained why blood was not an item that can be seized for a misdemeanor (as opposed to a felony) DUI:

"[W]e agree that blood is not “used as a means to commit” driving under the influence. Instead, blood is seized for its evidentiary value. And, no one uses his or her blood “as a means to” do anything, as those words are commonly used or understood. Given that statutes should be construed in accordance with their “plain and ordinary meaning,” Osborne v. Dumoulin, 55 So.3d 577, 581 (Fla.2011) (citations omitted), and that search warrants must strictly conform to the statutes and constitutional provisions which authorize their use, State ex rel. Wilson v. Quigg, 17 So.2d 697, 701 (1944); Crain v. State, 914 So.2d 1015, 1020 (Fla. 5th DCA 2005) (en banc), we agree with the trial court that blood cannot be drawn based upon probable cause that a suspect has committed misdemeanor DUI in light of the plain language of section 933.02, Florida Statutes.
Thus, the appellate court found the search warrant was improvidently granted. Nevertheless, the Florida court refused to suppress the blood draw, finding that the draw was 'in good faith':

"The good faith exception holds that the exclusionary rule need not be applied when the officer conducting the search acted in objectively reasonable reliance on an invalid warrant. State v. Watt, 946 So.2d 108, 110 ( Fla. 5th DCA 2007) (citing Leon ). The test for good faith is “whether a reasonably trained officer would have known that the search was illegal despite the magistrate's authorization.” Leon, 468 U.S. at 923 n.23.

"Geiss argues that in Isley, Judge Silverman acknowledged that an appellate determination that a warrant is not authorized under the warrant statute or is barred by the implied consent statute “may render the warrant so facially deficient as to preclude application of the Leon exception.” However, at the time the warrant was issued in this case, there was no such appellate decision barring such warrants. To the contrary, Isley was an appellate opinion from the same circuit which allowed them.

"Applying the Leon good faith exception, we find that the blood test results in this case should not have been suppressed. Accordingly, we reverse the order on appeal and remand for further proceedings."
Editors Note: The court's analysis of Florida's Right of Privacy, implies that the this Right of Privacy grants Florida citizens no more protection than what they already have under the Fourth Amendment to the U.S. and state constitutions. This interpretation, suggesting that it is only as great as the 4th Amendment, is contrary to most rules of statutory construction that bar an interpretation that would render a law meaningless.

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