People v. Hanna

• Decision Date: 16 May 1997
• Docket Number: Docket No. 183094
• Citation: 223 Mich.App. 466,567 N.W.2d 12
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric Rural HANNA, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 12

567 N.W.2d 12

223 Mich.App. 466

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric Rural HANNA, Defendant-Appellant.

Docket No. 183094.

Court of Appeals of Michigan.

Submitted Oct. 17, 1996, at Escanaba.

Decided May 16, 1997, at 9:00 a.m.

Released for Publication Aug. 6, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Patrick M. Shannon, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, for People.

Rudolph F. Perhalla, Ironwood, for Defendant-Appellant on appeal.

Before GRIBBS, P.J., and MacKENZIE and GRIFFIN, JJ.

GRIFFIN, Judge.

Defendant was convicted by a jury of operating a motor vehicle while under the influence of liquor, M.C.L. § 257.625; M.S.A. § 9.2325, and attempting to resist and obstruct a police officer, M.C.L. § 750.479; M.S.A. § 28.747; M.C.L. § 750.92; M.S.A. § 28.287. He pleaded guilty of being a third-time OUIL offender and was sentenced to concurrent terms of two to five years' imprisonment for the OUIL 3rd conviction and six months to one year for the attempted resisting and obstructing conviction. Defendant appeals as of right both convictions. We affirm. In doing so, we hold that, under the totality of the circumstances of this case, the police did not violate defendant's Fourth Amendment rights by briefly restraining him with a pain compliance device in order to execute a warrant for a blood sample.

I

After the police stopped defendant for speeding, he stumbled out of his vehicle, stood unsteadily, and with slurred speech admitted that he had been drinking. Thereafter, defendant failed a field sobriety test, refused to take a Breathalyzer examination, and vomited in his jail cell. While arresting officers Bradley LaCross and Michael Troyer drove defendant to a hospital to execute a warrant to draw a sample of defendant's blood, defendant proclaimed repeatedly in a loud, angry voice that he would not permit anyone to draw his blood.

Defendant became "very uncooperative" at the hospital and refused to lie on the examination table. Defendant jerked his arm away from the laboratory technician who attempted to draw his blood. Concerned about the safety threat posed by defendant's evasive conduct, the two officers restrained defendant by laying him on the examination table and applying for "a few seconds" "Do-Rite sticks" ¹ to pressure points on defendant's wrists. The pressure subdued defendant, who then relaxed and permitted the laboratory technician to draw his blood.

Officer LaCross described Do-Rite sticks as being two plastic rods connected with a one-inch cord. The device is used by wrapping the cord around certain pressure points and exerting pressure by briefly pulling or twisting the handles. ² LaCross testified that the device inflicts a "quick and simple" discomfort that causes no injury or lasting pain. According to LaCross, all Sault Ste. Marie police officers receive training before receiving certification to carry and use Do-Rite sticks.

After trial, defendant claimed that the use of Do-Rite sticks constitutes cruel and unusual punishment. The trial court rejected defendant's argument finding that, under the circumstances of this case, the police used Do-Rite sticks "in a reasonable fashion[ ]" to "subdue" defendant and execute the warrant.

II

Defendant claims that it is "cruel and unusual for the police to have the ability to forcibly draw blood from an individual for a violation of the motor vehicle code." However, because defendant cites no authority to support this proposition, we consider the issue to be waived. People v. Piotrowski, 211 Mich.App. 527, 531, 536 N.W.2d 293 (1995). Furthermore, the Eighth Amendment is inapplicable because defendant was only a detainee at the time of the alleged misconduct. Brewer v. Perrin, 132 Mich.App. 520, 529, n. 3, 349 N.W.2d 198 (1984), citing Bell v. Wolfish, 441 U.S. 520, 535, n. 16, 99 S.Ct. 1861, 1872, n. 16, 60 L.Ed.2d 447 (1979).

Nevertheless, the dissent cites Rochin v. California, 342 U.S. 165, 166, 72 S.Ct. 205, 206-207, 96 L.Ed. 183 (1952), for the proposition that the use of Do-Rite sticks to subdue a combative detainee violates the Due Process Clause of the Fourteenth Amendment. However, in Graham v. Connor, 490 U.S. 386, 388, 392-393, 394, 109 S.Ct. 1865, 1867-1868, 1869-1870, 1870-1871, 104 L.Ed.2d 443 (1989), the United States Supreme Court specifically rejected the amorphous "substantive due process," or "shock the conscience" approach applied in Rochin, supra, and held that excessive force claims must be analyzed under the Fourth Amendment's "objective reasonableness" standard. See also Lester v. Chicago, 830 F.2d 706, 710-711 (C.A.7, 1987). Thus, the issue is whether the search and seizure is unreasonable under the Fourth Amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendment; not whether the search and seizure violates Due Process. See Electro-Tech, Inc. v. H F Campbell Co., 433 Mich. 57, 127-128, 445 N.W.2d 61 (1989) (Brickley, J., dissenting); Lester, supra at 710-711.

In determining the reasonableness of a particular seizure, we must carefully balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, supra at 396, 109 S.Ct. at 1871 (internal quotations marks omitted); see People v. Holloway, 416 Mich. 288, 299, 330 N.W.2d 405 (1982). In excessive force cases, we determine if the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, not with 20/20 hindsight. Graham, supra at 397, 109 S.Ct. at 1872; Hammer v. Gross, 932 F.2d 842, 846 (C.A.9, 1991). Because drawing blood is not, in itself, unreasonable under the Fourth Amendment, see Schmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908 (1966); People v. Perlos, 436 Mich. 305, 313, 462 N.W.2d 310 (1990), we must decide whether police officers may use Do-Rite sticks to subdue a suspect who is resisting a legal warrant to draw blood.

No Michigan case directly addresses this issue. However, in Holloway, supra, our Supreme Court held that the police acted reasonably in pressing on the suspect's throat and pinching the pressure points on his jaw to gain access to and search his mouth for hidden evidence. See also Wayne Co. Prosecutor v. Recorder's Court Judge, 149 Mich.App. 183, 187, 385 N.W.2d 652 (1986). Thus, it is not necessarily unreasonable for police to painfully manipulate pressure points as a means to search for dissolvable evidence. Holloway, supra; Recorder's Court Judge, supra. Because pain compliance techniques are not necessarily illicit, Holloway, supra, the issue is not whether Do-Rite sticks are unconstitutional because they cause temporary pain. Rather, the issue is whether the kind or degree of pain caused by Do-Rite sticks is unreasonable under the circumstances of this case.

In Forrester v. San Diego, 25 F.3d 804 (C.A.9, 1994), cert den 513 U.S. 1152, 115 S.Ct. 1104, 130 L.Ed.2d 1070 (1995), the Ninth Circuit Court of Appeals addressed the reasonableness of using a device similar to Do-Rite sticks. In a 2-1 decision, the majority upheld a jury finding that San Diego police officers did not use excessive force in using "Orcutt Police Nonchakus" (two wooden sticks each connected at one end by a cord) to disperse demonstrators who resisted arrest by going limp. Noting that the device seemed to cause less pain than other permissible compliance techniques, the Forrester majority held that police acted reasonably in twisting the device around the wrists of demonstrators whom they were trying to arrest or disperse. Id. at 807, 809. The dissent agreed that intentional infliction of pain by police is not unconstitutional per se. Id. at 814 (Kleinfeld, J., dissenting). However, the dissenting judge opined that, because the technique proved totally ineffective at moving the limp demonstrators, the continued use of the device was done to "punish" nonviolent, passively resisting demonstrators "for refusing to get up and walk." Forrester, supra at 811-813. Because it was used for no reason other than to punish, the dissenting judge deemed the continued use of the device to be unreasonable. Id.

III

In the present case, after evaluating the totality of the circumstances, we agree with the ruling of the trial court and hold that the police acted reasonably in briefly using Do-Rite sticks to subdue defendant and ensure the safe execution of the search warrant. First, the police clearly had a strong and legitimate interest in executing the warrant to draw defendant's blood as soon as possible. See Perlos, supra at 327-328, 462 N.W.2d 310. Further, the laboratory technician testified that he could not have safely drawn defendant's blood unless defendant ceased his combative conduct. Indeed, were he not pacified, defendant could have injured himself or others by causing the needle to inadvertently lacerate or break. With the obvious harm inherent by a misdirected or broken needle, the police were legitimately concerned about subduing defendant in order to facilitate the safe and effective execution of the warrant. Otherwise, defendant could have caused injury and thwarted the execution of the warrant.

Second, the nature and quality of the intrusion on defendant's person was not severe, unnecessary, or unduly intrusive. Officer LaCross and the laboratory technician testified that defendant was so combative that handcuffs and bed restraints would not have effectively prevented him from moving during the drawing of his blood. Even if the two officers were large and strong enough to control the defendant without using Do-Rite sticks, it is doubtful whether the force exerted in physically overpowering, positioning, and holding the combative defendant would have been less violent or caused less pain than the quick application of the Do-Rite sticks. In...