U.S. v. Harvey, s. 82-1298

Citation701 F.2d 800
Decision Date22 July 1983
Docket NumberNos. 82-1298,82-1321,s. 82-1298
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Mary Mae HARVEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Wallace CHASE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

David Taylor Shannon, Asst. Federal Public Defender, Phoenix, Ariz., for Harvey.

Thomas Schoppert, New Town, N.D., for Chase.

Robert Zimmerman, Asst. U.S. Atty., Billings, Mont., for plaintiff-appellee.

On Appeal from the United States District Court for the District of Arizona and the United States District Court for the District of Montana.

Before TRASK, ANDERSON, and CANBY, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

In this consolidated appeal, Harvey and Chase contest their convictions for involuntary manslaughter. Both convictions arose from alcohol-related highway accidents on Indian reservations. Each appeal presents the primary and common issue of whether the results of blood alcohol tests should have been suppressed when neither defendant was formally arrested at the time the blood samples were taken. We hold that Appellant Harvey should have been arrested by the authorities prior to the taking of the sample, and we therefore reverse. Appellant Chase, however, was so incapacitated as to obviate the need of a prior arrest and we affirm the judgment in his case.

I. FACTS
A. Harvey

On October 8, 1981, Mary Mae Harvey, a White Mountain Apache Indian, was driving a truck with a friend and the friend's daughter on the Fort Apache Reservation, about four miles outside McNary, Arizona. The truck crossed the center line and hit a van head-on, killing the driver of the van.

Ms. Harvey was taken to a hospital about an hour and a half after the accident. Investigator Garcia of the local Bureau of Indian Affairs (BIA) office, who had been at the scene of the accident, arrived at the hospital about two hours later. Without arresting Harvey, he requested her consent for a blood sample. She vehemently refused and one was taken over her objection. The blood sample was tested and it showed .19% alcohol. Harvey was not formally charged until February 17, 1982, at which time she was served with an indictment for involuntary manslaughter, 18 U.S.C. Sec. 1112, under the Major Crimes Act, 18 U.S.C. Sec. 1153.

Harvey's pretrial motion to suppress the blood alcohol evidence was denied. A trial commenced in April 1982, with the jury returning a verdict of guilty. Harvey was sentenced to two years' confinement.

B. Chase

Wallace Chase is an enrolled member of the Three Affiliated Tribes of the Fort Berthold Reservation in North Dakota. In the early morning of May 1, 1981, Chase was driving a car on the Fort Peck Reservation in eastern Montana. The car struck a bridge abutment and the passenger of the car was killed. Chase was seriously injured, sustaining a broken hip and internal injuries. He was taken to a BIA hospital in Wolf Point. The state patrolman who had investigated the scene relayed a message through a dispatcher requesting another patrolman, John Frellick, to proceed to the hospital and take a blood sample from Chase. The condition of Chase at the time Patrolman Frellick requested the sample is in dispute. The trial court concluded that Chase was so delirious it was unnecessary for the officer to have arrested him prior to having the treating doctor take the blood. The blood test showed an alcohol content of .21%.

Chase was indicted in September of 1981 for involuntary manslaughter. 18 U.S.C. Secs. 1153, 1112. His motion to suppress the blood alcohol evidence was denied. The trial was held in April 1982 and the jury found him guilty. Chase's three-year sentence of imprisonment was suspended contingent on his meeting certain probation conditions.

II. ISSUES

As indicated, the primary issue on appeal is whether evidence developed from a blood sample which was seized without consent, without a warrant, and without prior formal arrest should have been suppressed. Collateral questions that pertain to Chase's appeal involve whether Chase's incapacity made it unnecessary to formally arrest him prior to taking the blood sample, and whether Montana's implied consent statute has any force and effect on the Fort Peck Reservation.

Harvey also raises these other issues: Did the district court err by failing to instruct the jury that it need not unanimously decide on the manslaughter charge before it could deliberate on lesser included offenses? Did the district court improperly instruct the jury on the element of knowledge in an involuntary manslaughter charge? Were there instances of prosecutorial misconduct warranting a new trial?

Chase presents one additional issue: Should the district court have instructed the jury on the lesser included offense of careless driving?

III. DISCUSSION
A. Taking of the Blood Samples Without a Prior Arrest

Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), largely controls the resolution of this issue. In Schmerber, the Supreme Court held that a police officer who has validly arrested a suspect need not obtain a warrant in order to instruct medical personnel to draw a blood sample. The facts in Schmerber are similar to those in the cases before us: The defendant was involved in an automobile accident; the officer at the scene garnered indicia that the defendant was intoxicated; the officer proceeded to the hospital to take the defendant's blood sample; the officer requested the consent of the defendant to take the sample, which the defendant refused; and, the sample was taken over the defendant's objection. 1 384 U.S. at 758-759, 768-769, 86 S.Ct. at 1829-1830, 1834-1835, 16 L.Ed.2d at 912-913, 918-919. The key difference between our cases and Schmerber is that neither Harvey nor Chase were placed under formal arrest prior to extracting the blood.

The importance of the fact the defendant was placed under arrest in Schmerber is seen in the Court's rationalization of the seizure of the blood as a search incident to an arrest in which an emergency--the evanescent nature of blood alcohol levels--made it highly impracticable to first secure a warrant. 384 U.S. at 770-771, 86 S.Ct. at 1835-1836, 16 L.Ed. at 920. The importance of the arrest is also seen in the following language:

It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

384 U.S. at 772, 86 S.Ct. at 1836, 16 L.Ed. at 920. We feel constrained to follow the language of the opinion. To hold that a formal prior arrest is not necessary would be to extend Schmerber's applicability to different facts and conditions, a result the Court plainly did not intend.

Our "constraint" in requiring that a valid formal arrest is required prior to the taking of a blood sample is based on our recognition that the holding is somewhat formalistic. Professor LaFave makes a strong argument that the key element is probable cause to arrest, whether or not the intent to arrest is formally announced. 2 LaFave, Search and Seizure, Sec. 5.4(b) (1978). Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), also creates some uncertainty in our minds. In Murphy, the Supreme Court upheld the warrantless taking of fingernail scrapings from a suspect even though the suspect had not been placed under formal arrest. The Court noted first that the Fourth Amendment protects against unreasonable seizures as well as arrests; it then focused on the existence of probable cause to seize and arrest Murphy. 412 U.S. at 294-295, 93 S.Ct. at 2003, 36 L.Ed.2d at 905. Seemingly equating Murphy's seizure with an arrest, the Court, as in Schmerber, rationalized the taking of fingernail scrapings as a limited and reasonable method to preserve evanescent evidence. 412 U.S. at 296, 93 S.Ct. at 2004, 36 L.Ed.2d at 906. Murphy was not arrested until a month later, a fact which convinced Justices Douglas and Brennan that the existence of probable cause to arrest the defendant was not so clear, making a remand appropriate. 412 U.S. at 301, 305, 93 S.Ct. at 2006, 2008, 36 L.Ed.2d at 909, 911. We do not, however, find Murphy controlling because it involved a much less intrusive search than the extraction of a blood sample. Also, we have found no cases which expand Murphy to the point of holding that a substantially contemporaneous formal arrest is not now required to support a search incident to arrest. Recently, the Supreme Court has cited Murphy in support of the following statement: "Where the formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest rather than vice versa." Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633, 645-646 (1980). The law of this circuit goes no further. It upholds searches incident to an arrest prior to the actual arrest but requires that the arrest be substantially contemporaneous with the search. Cipres v. United States, 343 F.2d 95, 98 (9th Cir.1965), cert. denied, 385 U.S. 826, 87 S.Ct. 58, 17 L.Ed.2d 62 (1966); United States v. Chatman, 573 F.2d 565, 567 (9th Cir.1977). The arrests at issue here did not follow "quickly on the heels" of the search. The arrests, such as they were, did not occur until several months after the seizure of the blood and we are not yet persuaded to abandon the formal arrest requirement that is necessarily implied in Schmerber in favor of the probable cause to seize rule of...

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