U.S. v. Chapel

• Decision Date: 26 May 1995
• Docket Number: No. 93-30236,93-30236
• Citation: 55 F.3d 1416
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel G. CHAPEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1416

55 F.3d 1416

63 USLW 2803

UNITED STATES of America, Plaintiff-Appellee, v. Daniel G. CHAPEL, Defendant-Appellant.

No. 93-30236.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 23, 1995.

Decided May 26, 1995.

Larry Kupers, Deputy Federal Public Defender, San Francisco, CA, and David M. Ortley, Kalispell, MT, for defendant-appellant.

Joseph Douglas Wilson, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before: WALLACE, Chief Judge, BROWNING, HUG, SCHROEDER, FLETCHER, PREGERSON, CANBY, REINHARDT, THOMPSON, O'SCANNLAIN and LEAVY, Circuit Judges.

CANBY, Circuit Judge:

We granted en banc review of this case to consider whether to overrule our decision in United States v. Harvey, 701 F.2d 800, 803-04 (9th Cir.1983), which held that the Fourth Amendment requires that authorities arrest a suspect prior to a non-consensual taking of a sample of the suspect's blood without a warrant. In the case we review, a three-judge panel reversed Daniel Chapel's conviction for drunken driving in violation of 36 C.F.R. Sec. 4.23(a)(2), after concluding that park rangers violated his Fourth Amendment rights when they seized a blood sample later used in evidence against him. United States v. Chapel, 34 F.3d 893 (9th Cir.1994). The panel recognized that, under Harvey, the failure of the rangers to arrest Chapel before or shortly after obtaining the blood sample rendered the seizure unreasonable. Id. at 894.

Having considered the question anew, we conclude that the Fourth Amendment does not require the arrest of a suspect in order for law enforcement officers to cause the taking of a sample of the suspect's blood without consent or a warrant. We therefore overrule Harvey. We vacate the panel's decision and remand the case to the panel for a determination whether probable cause existed to support the taking of Chapel's blood.

BACKGROUND

We adopt the statement of facts set forth by the panel, 34 F.3d at 893:

Daniel Chapel was severely injured in a single-vehicle motorcycle accident in a remote part of Glacier National Park. Several park rangers and a park medic came to his assistance. The rangers administered first aid and the medic radioed a helicopter to evacuate Chapel to the regional hospital. The medic also prepared an I.V. as a routine life-support measure.

While administering first aid, the rangers noticed telltale signs that Chapel had been drinking: his breath smelled of alcohol, his speech was slurred, his eyes were bloodshot. The rangers sought to gather hard evidence of Chapel's intoxication. They first asked Chapel to take a breathalizer test, but he refused. Knowing that Chapel's blood alcohol content ("BAC") would dissipate, the rangers instructed the medic to obtain a blood sample for later testing. The medic, who had already inserted a sterile needle into Chapel's arm to administer the I.V., withdrew a small sample of Chapel's blood.

The rangers' suspicions turned out to be only too well founded. The Montana Forensic Science Lab examined Chapel's blood sample and determined that he had a BAC of 0.21 grams of alcohol per 100 milliliters of blood; in other words, he was crapulent. Based largely on this evidence, Chapel was convicted of drunk driving under 36 C.F.R. Sec. 4.23(a)(2)

...

In considering Chapel's appeal, the panel reviewed the circumstances under which the Fourth Amendment would permit the non-consensual seizure of blood, without a warrant, to test for alcohol content. The panel first recounted the three requirements derived from Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966):

First, an officer ordering that a blood sample be taken must reasonably believe he is "confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threaten[s] 'the destruction of evidence.' " Second, the officer must have probable cause to believe the suspect has been driving under the influence of alcohol. Third, the procedures used to extract the blood must be reasonable; that is, the sample must be taken by trained medical personnel in accordance with accepted practices.

Chapel, 34 F.3d at 894 (internal citations omitted).

The panel also recited a fourth requirement, subsequently imposed by Harvey, that "the officer must arrest the suspect before, or soon after, taking the sample." Id. (citing Harvey, 701 F.2d at 804). ¹

The panel observed that the officers had met the three requirements of Schmerber, but had failed to make an arrest as required by Harvey. The panel thus concluded that "[al]though the rangers' conduct in seizing Chapel's blood was entirely reasonable," their failure to arrest Chapel rendered their seizure of his blood sample unconstitutional under Harvey. Chapel, 34 F.3d at 895. The panel therefore held that the evidence should have been suppressed, and accordingly reversed Chapel's conviction.

DISCUSSION

The panel correctly recognized that the rule of Harvey, requiring that police formally arrest a suspect prior to ordering removal of a blood sample, controlled its decision in the present case. We now reexamine Harvey to determine whether its constitutional ruling retains vitality. We conclude that it does not.

We start with the proposition that courts and juries should not be denied probative evidence unless it was procured in violation of the rights of the accused. In the situation posed by this case as well as by Harvey, it is difficult to see what rights of the accused were violated by their not having been arrested at the time the blood was extracted. Why, then, did Harvey impose a requirement of arrest? The opinion in Harvey made clear that its ruling was based on its interpretation of Schmerber. The central reason why Schmerber permitted the non-consensual taking of blood without a warrant, according to Harvey, was that the taking was part of a search incident to arrest. Harvey, 701 F.2d at 803. Without the arrest, there was no constitutional justification for the search in the absence of a warrant. See id. at 803-04. Even in so concluding, Harvey allowed that its holding was "somewhat formalistic," and acknowledged the scholarly criticism that "the key element [in cases of involuntary blood samples] is probable cause to arrest, whether or not the intent to arrest is formally announced." Id. at 804 (citations omitted). Nonetheless, Harvey felt "constrained" to follow its reading of Schmerber. Id. at 803-04.

We now know from the Supreme Court's reasoning in a case decided after Harvey that the seizure of blood in Schmerber "fell within the exigent-circumstances exception to the warrant requirement." Winston v. Lee, 470 U.S. 753, 759, 105 S.Ct. 1611 1616, 84 L.Ed.2d 662 (1985). ² Seizures of evidence based on exigent circumstances do not, of course, have to be accompanied by an arrest. See Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1983) (scraping of suspect's fingernail to preserve evidence upheld; suspect arrested one month later). Accordingly, an arrest is not essential to support the intrusion in the absence of a warrant, so long as the three explicit Schmerber requirements are met. ³ Thus, the interpretation of Schmerber that formed the basis for our decision in Harvey, although plausible at the time, is no longer sustainable in light of Winston. Harvey 's arrest requirement therefore cannot stand.

The result we reach today does no violence to the Fourth Amendment or the protections it affords to those suspected of crime. Before a law enforcement officer may lawfully take a blood sample without consent or a warrant, he or she must have probable cause to believe that the suspect has committed an offense of which the current state of one's blood will constitute evidence. Schmerber, 384 U.S. at 770, 86 S.Ct. at 1835. The requirement of a contemporaneous arrest adds nothing to that constitutional protection; the probable cause threshold in these circumstances remains the same. See Berry, 866 F.2d at 891 (6th Cir.1989) (the facts in Schmerber "creating probable cause for arrest also established that the results of the blood test would prove positive"). There is nothing about an arrest that aids the suspect.

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