Layland v. State
| Decision Date | 21 May 1975 |
| Docket Number | No. 2264,2264 |
| Parties | Fred J. LAYLAND, Petitioner, v. STATE of Alaska, Respondent. |
| Court | Alaska Supreme Court |
Before RABINOWITZ, C. J., CONNOR, ERWIN and BOOCHEVER, JJ., and DIMOND, J. Pro Tem.
In November of 1973 on the Glenn Highway near Anchorage, an automobile driven by petitioner Layland collided with another vehicle. One of the occupants of the other vehicle was killed; Layland was injured and was taken to a hospital for treatment. While at the hospital, Layland was requested, by a state trooper, to consent to the taking of a sample of blood for the purpose of testing its alcohol content. 1 When Layland refused to consent, an oral order authorizing the withdrawal of petitioner's blood was obtained from District Judge Brewer. 2 The record demonstrates that no search warrant authorizing the taking of the blood sample as obtained prior to the withdrawal of the blood nor was Layland's arrest contemporaneous with the taking. 3
In February of 1974, an indictment was returned charging Layland with the offense of negligent homicide. 4 One of the specific acts of negligence charged in the indictment was that Layland operated a motor vehicle while intoxicated in violation of AS 28.35.030. Layland then moved to suppress the results of the blood-alcohol test on the ground that the taking of the blood sample without his consent violated his right to be protected from unreasonable searches and seizures under both the federal and Alaska constitutions. U.S. Const. amend. XIV; Alaska Const. art. I, § 14. Following oral argument, the superior court denied the motion to suppress. 5
This petition presents the issue of whether the superior court's refusal to suppress the results of the blood-alcohol test in the circumstances of the instant case was erroneous.
Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), is the leading case dealing with the Fourth Amendment constraints on the taking of blood samples. In Schmerber, the appellant was involved in an automobile accident, and a patrolman who arrived at the scene shortly after the accident smelled liquor on appellant's breath and noticed that appellant's eyes had 'sort of a glassy appearance.' Appellant was thereafter transported to a hospital for treatment of his injuries and while at the hospital was arrested for operating a motor vehicle while under the influence of intoxicating liquor. After the arrest had taken place, a sample of appellant's blood was extracted by a physician at the direction of the police officer. Appellant did not consent to the withdrawal of his blood, nor did the officer have a search warrant at the time. The United States Supreme Court held that a blood sample may be taken from a lawfully arrested person without that person's consent and that the blood test results are admissible evidence. The holding was stated as follows:
(W)e conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest. 6
A majority of the courts which have confronted the issue since Schmerber have interpreted Schmerber to require an arrest before a blood sample can be taken. 7 The intermediate appellate court of New Jersey seems to interpret Schmerber as permitting the taking of a blood sample without a prior arrest under the exigent circumstances exception to the search warrant requirement. 8 Several courts, while acknowledging the arrest requirement of Schmerber, hold that requirement satisfied in the absence of a prior arrest where the accused was either unconscious or semiconscious and therefore could not be made aware that he was under arrest. 9 There are at least four ways in which the state's taking of a sample of Layland's blood could be deemed constitutional under the parallel search and seizure provisions of the federal and Alaska constitutions. First, it is clear that the blood sample could have been lawfully obtained pursuant to a search warrant based on probable cause. When, as in the case at bar, a blood sample is taken without a warrant, the taking is considered an unconstitutional search and seizure unless there was consent to the search; 10 or the search was carried out incident to a lawful arrest; or the search was made under circumstances which indicate that destruction of known evidence was imminent. 11
Although an oral order was obtained from District Judge Brewer prior to the taking of a blood sample from Layland, the state, as previously indicated, admits that no search warrant was ever issued. 12 Thus, it must be determined whether any of the established exceptions to the search warrant requirement are applicable to the factual situation portrayed in the instant case. We turn initially to the consent exception. Since Layland was conscious and did not consent to the taking of the blood sample, there was no express consent to the search on his part. Further, Alaska's Implied Consent statute, AS 28.35.031, does not furnish the requisite consensual basis because it authorizes only a chemical breath test, not the taking of blood for a blood-alcohol test. 13
As to the second exception to the warrant requirement, the record shows that Layland had not been arrested either before or substantially contemporaneously with the taking of the blood sample. 14 Warrantless arrests are regulated by AS 12.25.030 which provides that
A private person or a peace officer without a warrant may arrest a person
(1) for a crime committed or attempted in his presence;
(2) when the person has committed a felony, although not in his presence;
(3) when a felony has in fact been committed, and he has reasonable cause for believing the person to have committed it.
Under AS 12.25.030, a peace officer may not arrest a person for a misdemeanor violation unless the crime was actually committed or attempted in the officer's presence. In Howes v. State, 503 P.2d 1055 (Alaska 1972), we said, in discussing AS 12.25.030(1), 'Two elements are involved in the term 'presence': (1) The officer must observe acts which are indicative of the commission of an offense; (2) The officer must be aware that he is in fact seeing an offense being committed.' 15 The Alaska legislature has classified both reckless driving 16 and operating or driving an automobile under the influence of intoxicating liquor 17 as misdemeanors. Thus, under the facts of this case, the state trooper who arrived at the accident scene could not arrest Layland without a warrant for either reckless driving or drunk driving since neither of these offenses was committed or attempted in his presence. 18
Subsection (3) of AS 12.25.030 does permit arrest where a felony has in fact been committed and the officer has 'reasonable cause' for believing the person to have committed the felony. 19 Likely felony charges that could have arisen out of the accident here are negligent homicide 20 and manslaughter. 21 We agree that on this record it appears that the state trooper had probable cause to make a warrantless arrest of Layland for the offense of negligent homicide. 22 Yet Layland's arrest did not occur prior to or substantially contemporaneously with the time his blood sample was taken at the hospital. 23 Thus, we hold that this exception to the warrant requirement is not applicable in light of the facts of the instant case. 24
We emphasize the requirement of, at least, a 'substantially contemporaneous' arrest because the state, in the case at bar, advances the argument that the investigating officer had probable cause to arrest Layland at the scene of the accident for negligent homicide, but he did not do so because Layland was in need of medical assistance and the officer was concentrating on assisting him. Assuming that the investigating officer did have probable cause to arrest, the state further argues that 'the formal recitation of 'you are under arrest' is practically meaningless, and should be excused.'
We reject the state's contention for the following reasons. In Cipres v. United States, 343 F.2d 95 (9th Cir., 1965), the Ninth Circuit stated the prevailing rule as follows:
(A) prior search may be valid as incident to a substantially contemporaneous arrest without a warrant if the arresting officers had probable cause for the arrest at the time of the search, and the circumstances suggested that immediate search was necessary to preserve material subject to seizure. 25
Alaska had adopted this view in Goss v. State, 390 P.2d 220 (Alaska), cert. denied, 379 U.S. 859, 85 S.Ct. 118, 13 L.Ed.2d 62 (1964). There a state trooper on night patrol observed a car, with its headlights off, being driven away from the side of a business premises. The trooper followed the car, stopped it, and, through the window of the car, saw a pistol and a number of folded shirts, which seemed to be new merchandise. He then searched the three occupants of the car and the car itself before returning to the business premises, finding that the premises had been burglarized, and placing the three men under arrest. Justice Dimond, speaking for this court, upheld the warrantless search as incident to a lawful arrest because the circumstances
weould be enough to warrant a prudent man in believing that a felony had been committed. The existence of probable cause to make an arrest without a warrant justified the officer in conducting an immediate search without a warrant. The search was incident to a lawful arrest although it preceded the arrest. 26
It is our belief that the rule as applied in Goss and enunciated in Cipres comports with constitutional standards, under the Fourth Amendment to the United States Constitution and article I, section 14 of the Alaska Constitution, only if the requirement of...
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