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After The Trial Blog

The After The Trial blog presents insights on ongoing and recent trials around the state of Alabama, including weekly criminal law round-ups.

US Supreme Court Update - Birchfield v. ND

J.D. Lloyd - Friday, June 24, 2016

Birchfield v. North Dakota

Bernard v. North Dakota

Beylund v. North Dakota


Summary: During a DUI stop, the Fourth Amendment allows police officers to administer a warrantless breath test as a search incident to arrest, but does not allow for warrantless blood tests as a search incident to arrest. As such, because a warrantless blood draw as a search incident to arrest is prohibited by the Fourth Amendment, the State cannot criminalize the refusal to submit to warrantless blood draws as search incident to arrest under implied consent laws.



Every state has some form of “implied consent” law to help law enforcement investigate whether a driver is driving drunk. An “implied consent”  requires a driver to submit to blood-alcohol content (BAC) testing. If you refuse, you could be subject to administrative penalties. In Alabama, you could have your license suspended or be forced to install an Interlock device that tests your breath for alcohol when you start your car.


North Dakota’s implied consent law took things a step further: if you refused to submit to breath or blood testing, you could be prosecuted criminally. At the heart of these DUI cases are three questions: (1) Can police force you to submit to a warrantless breath test as a search incident to a DUI arrest? (2) Can police force you to submit to a warrantless blood draw as a search incident to a DUI arrest? (3) Can a state criminalize the refusal of either under its implied consent law?


Birchfield was convicted after refusing to submit to a warrantless blood test. Birchfield argued that the warrantless search violated the Fourth Amendment and that the Fourth Amendment prohibited criminalizing his refusal. Bernard was prosecuted for refusing to submit to a warrantless breath test and appealed the constitutionality of the search and criminal prosecution for refusing the breath test. Beylund consented to the blood draw after police told him he had to submit. Beylund appealed the voluntariness of his consent to the draw and the ND Supreme Court affirmed.



The Fourth Amendment allows police officers to conduct warrantless searches as incident to a lawful arrest. In the context of a DUI, the Court concluded that law enforcement may order you to submit to a breath test to check BAC as a lawful warrantless search incident to arrest. In the Court’s view, a breath test does not “implicate significant privacy concerns;” however, a blood test does implicate “significant privacy concerns” as it is obviously more intrusive to a suspect’s body. Because of the greater privacy concern and because breath testing is a less-intrusive alternative to check BAC, police cannot conduct a warrantless blood draw as a search incident to arrest. The Court left open the possibility that other warrant exceptions could apply.


The Court then applied this holding to the three cases at hand. For Birchfield, the Court said a warrantless draw of Birchfield’s blood would be unconstitutional, so he could not be prosecuted for refusing an unconstitutional search. For Bernard, the Court concluded that the police did not have to get a warrant to force him to submit to a breath test, so the warrantless search was proper under the Fourth Amendment, and thus, his prosecution was constitutional. For Beylund, the Court remanded the case back to the ND SC to determine whether his consent to the blood draw was voluntary given the inaccuracy of the police officer’s instruction.




Justices Sotomayor and Ginsburg would have held that the Fourth Amendment prohibits both breath tests and blood draws as searches incident to lawful arrest. Justice Thomas, on the other hand, would have held that the Fourth Amendment allows both breath tests and blood draws as searches incident to lawful arrest.



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US Supreme Court Update - Utah v. Strieff

J.D. Lloyd - Thursday, June 23, 2016



The Salt Lake City PD received an anonymous tip regarding drug activity at a house. A detective watched the house and saw folks coming and leaving after only a short duration. To him, this evidenced drug activity going on inside. The detective observed Strieff leave the house. He followed Strieff and eventually stopped him. The detective asked for Strieff’s ID and found out that Strieff had an outstanding warrant on traffic tickets. He arrested Strieff and searched him as incident to that arrest. Of course, the detective finds meth and meth paraphernalia.


After being charged, Strieff moved to suppress the drug evidence on the grounds that the detective illegally detained him. The State conceded that the detective did not have reasonable suspicion to stop Strieff, but argued that the “existence of the warrant attenuated the connection between the unlawful stop and the discovery of contraband.” A lower court affirmed denial of the suppression motion, but the Utah Supreme Court reversed.




The Court concluded that the exclusionary rule did not require suppression of this evidence because the discovery of the warranted attenuated the connection between the unconstitutional police actions and the discovery of the drugs.


Long ago, the Court created the “exclusionary rule” to exclude unlawfully seized evidence, also referred to as “fruit of the poisonous tree.” The Court has stressed that it’s to be applied so long as its “deterrence benefits outweigh the societal costs.” There are several exceptions to this rule, one of which is called “attenuation doctrine” which provides that suppression isn’t proper when the connection between the unconstitutional action and the seized evidence is either “remote” or interrupted by some “intervening circumstance.” At question here is the latter concern: was the discovery of a valid warrant an event sufficient to break the chain between the unlawful stop and the discovery of the drugs.


The Court employs a three-part test to answer this question: (1) What is the temporal proximity between the illegal conduct and the discovery of evidence? (2) What are the intervening circumstances?   (3) What was the purpose of the conduct and how flagrant was it?


While the Court found that the short time between the constitutional violation and discovery of the evidence favored suppression, the last two facts strongly favored not applying the exclusionary rule. Under the second prong, the existence of a valid warrant was a significant intervening circumstance. Once he discovered it, he was under an obligation to arrest Strieff. With respect to the final prong, the Court didn’t believe the detective’s actions were flagrant or part of “systemic or recurrent police misconduct”: while the initial detention was “at most negligent,” his actions after the stop were “lawful.”


The dissents in this case are quite strong. Justice Kagan’s dissent states that this decision effectively invites police to make illegal stop.


My Thoughts


If you look at this case objectively, the Court’s decision makes sense: if a police officer happens to learn someone has an outstanding valid warrant for their arrest, that officer has the duty to arrest them. If an arrest is made pursuant to a lawful warrant, police may search the arrestee. Thus, the search extends from the valid warrant.


But if you look at this case subjectively, the Supreme Court has given police officers leeway to engage in unconstitutional behavior. There’s really no way around it. The Court has told officers who would rather investigate outside the boundaries of the Fourth Amendment, “Hey, we’ve got your back in the borderline cases.” Count me in Justice Kagan’s camp.



If you or someone you know has been convicted of wrongful criminal charges, there is hope after the trial. Contact us today by clicking HERE.


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