State v. Breuer

• Decision Date: 06 January 2012
• Docket Number: No. 09–1170.,09–1170.
• Parties: STATE of Iowa, Appellee, v. Lee Allen BREUER, Appellant.
• Court: Iowa Supreme Court

808 N.W.2d 195

STATE of Iowa, Appellee,

v.Lee Allen BREUER, Appellant.

No. 09–1170.

Supreme Court of Iowa.

Jan. 6, 2012.

Richard E.H. Phelps II of Phelps Law Office, Mingo, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Steven Johnson, County Attorney, and Michael K. Jacobsen, Assistant County Attorney, for appellee.

APPEL, Justice.

In this case, we consider whether the withdrawal of a blood specimen pursuant to a search warrant violates the search and seizure provisions of the Iowa or United States Constitutions when the warrant is not physically present during the withdrawal. For the reasons expressed below, we conclude this case presents no constitutional violation.

I. Factual and Procedural Background.

The material facts are undisputed. Lee Allen Breuer was the apparent driver in a one-car accident on Highway 6 in Jasper County. When Lieutenant Dennis Stevenson of the Jasper County Sheriff's Office arrived at the scene, he saw an overturned vehicle in a ditch along the side of the highway. Breuer was attempting to assist a passenger in the overturned vehicle.

At the scene, Stevenson rendered assistance. He detected an odor of alcohol about Breuer and observed that Breuer was unsteady on his feet. Stevenson also observed a number of beer cans lying in and around the car.

Breuer and the passenger were transported to Grinnell Regional Medical Center. At the hospital, Deputy Sheriff Aaron Groves asked Breuer to provide a breath test, but Breuer refused to provide a sample. Groves invoked implied consent procedures, including reading Breuer the implied consent advisory required by Iowa law. Breuer refused to provide a blood or urine test.

Following Breuer's refusals, Stevenson met with a magistrate in Newton and obtained a warrant authorizing withdrawal of a blood specimen from Breuer. See Iowa Code § 321J.10 (2009). After he obtained the warrant, Stevenson called Groves at the hospital in Grinnell and advised Groves he had obtained the warrant and was en route to the hospital. Before Stevenson arrived at the hospital with the warrant, Groves informed Breuer that a search warrant had been obtained and demanded that Breuer submit to a blood draw. Breuer initially refused, but after Groves advised him that the blood would be withdrawn by force if necessary, Breuer acquiesced and a specimen was withdrawn.

Ten to fifteen minutes after the blood draw, Stevenson arrived at the hospital with the search warrant. Breuer was then advised that the warrant had arrived and a copy of it was placed with his belongings at the hospital. The alcohol content from the specimen provided by Breuer was 0.171, well over the legal limit for intoxication.

The passenger in Breuer's vehicle died as a result of injuries sustained in the accident. The State charged Breuer with homicide by vehicle in violation of Iowa Code section 707.6A(1). Breuer filed a motion to suppress the results of the blood draw, which the district court denied. The court of appeals affirmed. Breuer filed a motion for further review, which we granted.

II. Standard of Review.

The standard of review of the constitutional issues raised in this case is de novo. State v. Taeger, 781 N.W.2d 560, 564 (Iowa 2010).

III. Discussion.

A. Introduction. The parties agree that the blood draw could only legally be accomplished with a warrant. The parties also do not dispute that the search warrant was supported by probable cause and was otherwise valid. The sole issue presented in this appeal, therefore, is whether a blood draw pursuant to Iowa Code section 321J.10 is valid under the Fourth Amendment and article I, section 8 of the Iowa Constitution when the search warrant for the blood specimen is obtained but not physically present during the withdrawal.

B. Federal Caselaw. The Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. As we have noted, the Fourth Amendment contains both a Warrant Clause and a Reasonableness Clause. State v. Ochoa, 792 N.W.2d 260, 268 (Iowa 2010). Neither the Warrant Clause nor the Reasonableness Clause specifically requires that an officer conducting a search have physical possession of a warrant at the time of the search. U.S. Const. amend. IV; see also United States v. Banks, 540 U.S. 31, 35, 124 S.Ct. 521, 524–25, 157 L.Ed.2d 343, 352 (2003) (observing “[t]he Fourth Amendment says nothing specific about formalities in exercising a warrant's authorization”). Further, no party has identified any historical materials to assist in our analysis of the narrow question before us.

The United States Supreme Court has not directly addressed whether the Fourth Amendment requires a search warrant to be physically present at the place to be searched when the warrant is executed. In two cases, however, the Court has at least implied the Fourth Amendment imposes no such requirement.

In Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), the Court explained that the particularity requirement of the Fourth Amendment serves two purposes: to prevent general searches and to assure “the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” Groh, 540 U.S. at 561, 124 S.Ct. at 1292, 157 L.Ed.2d at 1081 (citation and internal quotation marks omitted). While recognizing the dual purposes of the particularity requirement, the Court noted that “neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure requires the executing officer to serve the warrant on the owner before commencing the search.” Id. at 562 n. 5, 124 S.Ct. at 1292 n. 5, 157 L.Ed.2d at 1081 n. 5.

The Court essentially repeated this observation in United States v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006). In Grubbs, the Court noted, in the context of a challenge to an anticipatory search warrant, that neither the Fourth Amendment nor the Federal Rules of Criminal Procedure requires the executing officer to present the property owner with a copy of the warrant before conducting the search. Grubbs, 547 U.S. at 99, 126 S.Ct. at 1501, 164 L.Ed.2d at 205. According to the Grubbs Court, the particularity requirement of the Fourth Amendment does “not protect an interest in monitoring searches.” Id. (citation and internal quotation marks omitted).

The vast majority of federal lower courts have found, in a wide variety of settings, that physical presence of a warrant is not required to support a search under the Fourth Amendment. See, e.g., United States v. Cazares–Olivas, 515 F.3d 726, 730 (7th Cir.2008) (“[W]e know from Grubbs and earlier decisions ... that, whatever the most prudent course may be, the fourth amendment does not require officers to have a warrant in hand when searching.”); United States v. Hepperle, 810 F.2d 836, 839 (8th Cir.1987); United States v. Bonner, 808 F.2d 864, 869 (1st Cir.1986); United States v. Marx, 635 F.2d 436, 441 (5th Cir.1981). Some cases suggest the better practice is to serve the search warrant prior to the search when it is practicable and in keeping with the ends of justice to do so. See, e.g., Hepperle, 810 F.2d at 839 (“While it may be foolhardy to proceed in the absence of the physical presence of the warrant, it is not unconstitutional.”); see also Model Code of Pre–Arraignment Procedure § SS 220.3(4), at 130 (1975). There is also some suggestion in the caselaw that the Federal Rules of Criminal Procedure require officers to leave a copy of the warrant when the officers conclude the search or when they vacate the premises. See United States v. Simons, 206 F.3d 392, 402–03 (4th Cir.2000) (holding search team violated Rule 41 by failing to leave a copy of the warrant or receipt of items taken following the search, but concluding the violation did not have a constitutional dimension); see also Fed.R.Crim.P. 41(f).

There are a few outliers in the federal cases. One is United States v. Gantt, 194 F.3d 987 (9th Cir.1999), overruled on other grounds by United States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir.2008). In Gantt, the Ninth Circuit held that the Federal Rules of Criminal Procedure required federal agents to possess a search warrant before commencing a search. Gantt, 194 F.3d at 1001. Although the court rested its decision on the Federal Rules of Criminal Procedure, it noted that the physical presence of the search warrant at the outset of the search advanced the Fourth Amendment's particularity requirement by assuring the property owner of the lawfulness of the search and by giving “notice to the person subject to the search what the officers are entitled to seize.” Id. at 1001–02 (citation and internal quotation marks omitted). But even Gantt recognizes that a search warrant need not be physically present where exigent circumstances exist. Id. at 1004–05. Precedent from the Ninth Circuit also suggests the court may have reached a different conclusion had its analysis been restricted to the Fourth Amendment inquiry. See United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir.1978) (reasoning the Fourth Amendment was not offended even though the search warrant was absent during the search of the defendant's residence). Additionally, Grubbs and Groh cast doubt on Gantt's continuing validity. See United States v. Mann, 389 F.3d 869, 875 n. 1 (9th Cir.2004) (stating “dicta in ... Groh ... casts serious doubt both on our interpretation of Rule 41 and our reasoning in Gantt ”).

C. Caselaw from Other States. Several state courts have addressed the issue presented in this case. State...