State v. Geiss

• Decision Date: 22 July 2011
• Docket Number: No. 5D10–3292.,5D10–3292.
• Citation: 70 So.3d 642
• Parties: STATE of Florida, Appellant,v.Gregory G. GEISS, Appellee.
• Court: Florida District Court of Appeals

70 So.3d 642

STATE of Florida, Appellant,

v.Gregory G. GEISS, Appellee.

No. 5D10–3292.

District Court of Appeal of Florida, Fifth District.

May 27, 2011.Order Denying Rehearing and Certifying Question July 22, 2011.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.Angela Meriah Park and Ernest L. Chang of Law Office of Ernest L. Chang, P.A., Melbourne, for Appellee.LAWSON, J.

The State appeals an order suppressing blood test results in a felony DUI case. After the defendant, Gregory Geiss, refused a breath test, police obtained a search warrant to draw a sample of his blood for testing. The trial court suppressed the blood results, concluding that obtaining a blood sample by search warrant violated: (1) Geiss's constitutional right to privacy, (2) the implied consent statute, and (3) the search warrant statute. We disagree with the first two conclusions but agree that the warrant should not have been issued under Florida's search warrant statute. However, we also find that the test results should not have been suppressed given law enforcement's good faith reliance on a judge's legal determination that the search was legally authorized. U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Accordingly, we reverse the suppression order and remand for further proceedings.

Underlying Facts and Standard of Review

On September 5, 2009, Geiss was stopped for failing to maintain a single lane. He refused a request to perform field sobriety exercises. After being arrested for DUI and informed of Florida's implied consent law, he also refused to take a breath test.

Police then obtained a search warrant to take a sample of Geiss's blood for testing. The affidavit sought authority to take Geiss to the hospital “for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples....” It further alleged that “[s]aid property was used to commit the offense [of DUI] ... a violation of section 316.193(1)(a), Florida State Statutes, Driving Under the Influence 2nd offense.” The affidavit described Geiss's prior history as follows:

A computer check of Geiss's license status revealed four suspensions dating from 2006, including a 5–year revocation from 2008 for a DUI conviction with a BAC of [.]249. The computer check also showed Geiss had 1 prior DUI conviction from 2008 and a DUI Personal injury arrest from 2005 with a conviction of Leaving the Scene and Hit and Run Property Damage.

The affidavit alleged the pertinent facts of the arrest and concluded, “THEREFORE, your undersigned affiant states he has probable cause to believe that the blood samples being sought contain Alcohol or Controlled Substances and is property concealed in the body of the driver, Gregory G. Geiss, causing impairment, in violation of sections 316.193(1)(a) or 316.193(1)(b), Florida State Statutes, DUI 2nd.”

A county judge issued the search warrant, noting that police were requesting blood samples “for the purpose of obtaining property that has been used as a means to commit the crime of Driving Under the Influence.” Based on the warrant, police obtained a blood sample from Geiss. He was conscious throughout the entire process. There was no accident, injury or death involved in the traffic incident.

Geiss was later charged by information in circuit court with felony DUI based on two prior DUI convictions in 2005 and 2008, and with driving while his license was suspended. He filed a motion to suppress the blood evidence, asserting that it was illegally seized in violation of his federal and state constitutional rights to privacy and against unreasonable search and seizure, as well as Florida's implied consent law. Both parties filed memoranda of law regarding the issues raised. After hearing arguments on the matter, the court suppressed the blood results.

In a lengthy written order, the court concluded that obtaining Geiss's blood by search warrant violated his constitutional right to privacy, the implied consent statute, and the search warrant statute. The State timely appealed. As there are no facts in dispute, we review the trial court's application of the law to the facts de novo. State v. Quinn, 41 So.3d 1011, 1013 (Fla. 5th DCA 2010).

Right to Privacy Issue

The trial court erred in concluding that the search warrant violated Geiss's state constitutional right to privacy as expressed in article I, section 23 of the Florida Constitution. In pertinent part, article 1, section 23 provides that: “Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein.” (Emphasis added). In other words, this provision cannot be interpreted without reference to other provisions in the Florida Constitution addressing governmental intrusion into one's private life.

Significantly, article 1, section 12 of the Florida Constitution requires that the state constitutional right against unreasonable searches and seizures “shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Because article 1, section 12 expressly authorizes governmental searches and seizures to the extent found to be reasonable under the Fourth Amendment by the United States Supreme Court, the “except as otherwise provided herein” language of article 1, section 23 must be read as authorizing governmental intrusion into one's private life to the same measure. See L.S. v. State, 805 So.2d 1004, 1008 (Fla. 1st DCA 2001) (“Article I, section 23, does not modify the applicability of Article I, section 12, so as to provide more protection than that provided under the Fourth Amendment ....”) (citing State v. Hume, 512 So.2d 185, 188 (Fla.1987)). Thus, if the search warrant was valid under the Fourth Amendment, it cannot be barred by article I, section 23.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court held that obtaining blood samples for testing is a search under the Fourth Amendment, and is permissible if there is probable cause to believe the person was driving while intoxicated and the blood is extracted in a reasonable manner by medical personnel pursuant to medically approved procedures. The court recognized that search warrants are ordinarily required, but held that the rapid diminution of blood alcohol content over time creates an exigent circumstance exception to the warrant requirement. Id. at 770–71, 86 S.Ct. 1826; see also State v. Bender, 382 So.2d 697, 698 (Fla.1980) (“There is no constitutional impediment to a blood alcohol analysis with or without consent where probable cause has been established.”); State v. Mitchell, 245 So.2d 618 (Fla.1971) (recognizing Schmerber as the law of the land), receded from on other grounds in Brackin v. Boles, 452 So.2d 540 (Fla.1984); State v. McInnis, 581 So.2d 1370, 1373 (Fla. 5th DCA 1991) (noting no Fourth Amendment right not to have blood drawn for testing); State v. Hilton, 498 So.2d 698, 699 (Fla. 5th DCA 1986) (same); State v. Williams, 417 So.2d 755, 756 (Fla. 5th DCA 1982) (same). Because police had probable cause to believe that Geiss was driving while intoxicated (a fact not contested on appeal), the blood draw did not run afoul of the Fourth Amendment,¹ and therefore did not violate Geiss's right under article 1, section 23 of the Florida Constitution.

Implied Consent Law

The trial court also erred in finding that the search in this case violated Florida's implied consent statute, section 316.1932, Florida Statutes (2009). This is because the search in this case was conducted pursuant to a warrant, and the implied consent law deals only with warrantless searches.

Regarding blood draws, section 316.1932(1)(c) states that any person operating a motor vehicle in Florida is deemed to have given his or her consent to an approved blood draw for testing “if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages ... and the person appears for treatment at a hospital, clinic or other medical facility and the administration of a breath test is impractical or impossible.” § 316.1932(1)(c), Fla. Stat. (2009). A person's refusal to submit to a blood test under this provision is admissible as evidence in court and results in suspension of the driver's license. Id. The trial court concluded that the instant blood draw was not permissible under this section because Geiss did not appear for treatment at a hospital and there was no showing that a breath test was impractical or impossible.²

Florida cases have held that the implied consent statute imposes greater restrictions on obtaining blood samples without a warrant than federal and state constitutional search and seizure protections. See Sambrine v. State, 386 So.2d 546 (Fla.1980) (holding that blood results obtained after defendant affirmatively refused request for blood violated implied consent statute irrespective of Schmerber ); State v. Williams, 417 So.2d 755 (Fla. 5th DCA 1982) (noting holding in Sambrine that implied consent law “goes beyond” Fourth Amendment protection). The court in Sambrine took a broad view of the implied consent statute, holding that the “plain statutory language and obvious legislative intent” of former section 322.261 led to the “inescapable conclusion that a person is given the right to refuse testing.” Sambrine, 386 So.2d at 548.

However, Florida's implied consent statute does not expressly prohibit obtaining blood by search warrant, or otherwise indicate any intent to invalidate judicial authority to issue a warrant as authorized in section 933.02, Florida Statutes. If the legislature had intended the implied consent statute to modify the warrant statute, it easily could have said so. For...