In this interlocutory appeal, the State seeks review of a district court ruling suppressing the results of a blood test drawn from the defendant, Remie Harris, without a search warrant. The blood test was administered following a single-vehicle accident wherein the defendant struck and killed a pedestrian. The trial court suppressed the blood sample and test result on the ground the State had failed to establish "the peace officer reasonably believe[d] the officer [was] confronted with an emergency situation in which the delay necessary to obtain a warrant under section 321J.10 threaten[ed] the destruction of the evidence." See Iowa Code § 321J.10A(1)(c) (2005). We now affirm.
I. Facts and Prior Proceedings.
At the suppression hearing conducted on November 14, 2006, the following undisputed facts were elicited. On April 17, 2006, at 7:12 p.m., Iowa State Patrol Officer David Overton was dispatched to Interstate 80, just east of Merle Hay Road, to a location where a pedestrian had been struck by a vehicle. Overton arrived at the scene within minutes. Upon his arrival, he observed medical personnel attending to an elderly female victim. Overton, therefore, turned his attention to closing the interstate and securing the scene.
Once further assistance arrived, Overton began to gather information from which he determined Harris was the driver of the vehicle that had struck the victim. As he approached the defendant, Overton detected a strong odor of alcohol on the defendant's
Harris was then examined by medical personnel. After Harris declined further treatment, Overton placed him under arrest. The defendant was transported to the state patrol post where, upon arrival, he was allowed to make several phone calls. Harris called his wife and also made attempts to contact an attorney. During this time, Harris was informed by Overton of the implied-consent law. Overton also notified the on-call assistant county attorney, Jim Ward, who advised the officer to begin preparing a search warrant application for obtaining a blood sample from the defendant.
Overton did not begin working on the search warrant application immediately, but waited until Ward's arrival at approximately 8:40 p.m. At 8:54 p.m., Overton invoked implied consent. The defendant refused to give his consent. After further consultation with Ward, the officer decided to obtain a warrantless blood specimen from the defendant while continuing to work on the warrant application. The blood specimen was drawn by a technician from the medical examiner's office at 9:06 p.m. A warrant was obtained between 10 and 10:30 p.m.
Id. § 321J.10A(1).
The defendant argues the district court did not err in suppressing the warrantless blood test because Overton did not personally recognize an emergency situation and because no emergency situation actually existed. Additionally, the defendant contends that if an emergency situation existed, it was created by the officer and assistant county attorney, and the State cannot rely on these circumstances to forego the warrant requirement.
In Johnson, we noted Iowa case law follows the rationale set forth in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), "that the natural dissipation of alcohol from the bloodstream may be an exigent circumstance making it constitutionally permissible to obtain a blood sample without a search warrant." Id. at 343 (emphasis added) (citing State v. Legg, 633 N.W.2d 763, 772 (Iowa 2001); State v. Findlay, 259 Iowa 733, 743, 145 N.W.2d 650, 656 (1966)). We agreed, however, with those courts that found Schmerber required more than the mere phenomenon of alcohol dissipation. Id. at 344 (citing State v. Rodriguez, 156 P.3d 771, 776 (Utah 2007) ("Schmerber does not stand for the proposition that the loss of evidence of a person's blood-alcohol level through the dissipation of alcohol from the body [alone] was a sufficient exigency to justify a warrantless blood draw.")). Schmerber required additional circumstances, such as time-based considerations, to support a warrantless intrusion under the Fourth Amendment. Schmerber, 384 U.S. at 770, 86 S.Ct. at 1835-36, 16 L.Ed.2d at 920 ("Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was not time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate
In Johnson, those additional circumstances/time-based considerations were satisfied by the facts of the case. When officers arrived at the scene of the accident, time had to be taken by the police officers to attend to the victim, interview witnesses, and locate the defendant. Johnson, 744 N.W.2d at 344. Once the defendant was located, additional time was expended in transporting him to the traffic office and eventually to the hospital where the blood sample was drawn without a warrant. Id. In finding the officer's actions complied with section 321J.10A and the Fourth Amendment, we stated:
Id. at 344-45.
In reviewing the facts, we note that nearly two hours had passed between the time of the fatal accident and the time of the blood draw. During this time, Overton was engaged in assisting with the closing of the interstate, interviewing witnesses, and determining the identity of the driver of the vehicle. Once an identification was made, further time was expended transporting Harris to the post. Although instructed by the assistant county attorney to begin the warrant application, Overton chose to wait until Ward arrived because he was unfamiliar with the process and needed assistance with the preparation. In the meantime, the defendant was provided an opportunity to contact his family and to attempt to locate an attorney. It was not until 8:54 p.m., when the defendant affirmatively refused to consent to providing a blood specimen, that the decision was made to go ahead with the warrantless blood draw. Overton testified that, after the defendant refused to give a breath sample, the assistant county attorney advised him to go ahead and get a blood sample.
While factual similarities exist between this case and Johnson, there is one important distinguishing fact. In Johnson, the officer testified he believed evidence of the blood-alcohol concentration would be destroyed
While Overton was aware that blood-alcohol levels dissipate over time and that this natural dissipation will result in the destruction of evidence, this knowledge alone is not sufficient to satisfy the statute. See State v. Lovig, 675 N.W.2d 557, 566 (Iowa 2004) (in considering whether exigent circumstances existed to justify a warrantless search, the court noted the actual time to obtain a warrant is an important fact, and if the time is relatively short, fear over dissipation will be alleviated). The statute requires that the peace officer, not the county attorney, reasonably believe that the delay involved in
All justices concur except WIGGINS and BAKER, JJ., who take no part.
Subsequently, the following exchange took place between defense counsel and the officer:
When the officer was questioned about obtaining a telephonic warrant, the following exchange took place:
When defense counsel inquired as to what was the specific emergency, the following exchanges took place: