A state split between North Carolina and South Carolina: Mitchell v. Wisconsin
When it comes to unconscious DUI suspects, the Supreme Court’s “almost always” rule in Mitchell v. Wisconsin has left states divided, defendants uncertain, and constitutional clarity hanging in the balance.
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Introduction
Since the Supreme Court of the United States ruled in Mitchell v. Wisconsin, states have had a new rule to follow when drunk-driving suspects are unconscious or so badly injured that they cannot consent to sobriety testing. Writing for the plurality, Justice Alito issued an opinion saying police almost always can order a warrantless blood draw when there is probable cause to suspect a person of being guilty of a drunk-driving offense, and they have to be taken to the hospital. Although this rule seems fairly simple, state courts have struggled, or even refused, to interpret the ambiguity in the rule’s application.
Several state supreme courts have split on how to apply the Mitchell rule in three materially different ways, including North Carolina and South Carolina. In September 2020, the South Carolina Supreme Court ruled that it would not follow the Supreme Court’s lead because it felt that Mitchell granted a quasi-presumption of exigent circumstances in favor of the state. The North Carolina Supreme Court endorsed a more balanced approach that follows Mitchell but drastically lowers the bar for the prosecution to show exigent circumstances at trial. Using a third interpretation, the Illinois Supreme Court, applying Mitchell, went beyond the Supreme Court, granting the prosecution a presumption of exigent circumstances outright.
Justice Thomas predicted this result in his concurring opinion in Mitchell, writing,
Today, the plurality adopts a difficult-to-administer rule: Exigent circumstances are generally present when police encounter a person suspected of drunk driving—except when they aren’t. . . . The plurality’s presumption will rarely be rebutted, but it will nevertheless burden both officers and courts who must attempt to apply it.
Now, with a patchwork of opinions across the country, it is important to examine each case closely to determine which states follow what rules and what the implications are for the rights of each state’s citizens.
The History of the Exclusionary Rule
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.
The Fourth Amendment of the United States Constitution grants citizens a broad spectrum of rights and protections against the government. Perhaps the most important is the protection against “unreasonable searches and seizures.” This means that, generally, police must obtain a warrant from a magistrate judge that permits officers to conduct a search or seizure in the manner prescribed in the warrant. In Weeks v. United States, the Supreme Court established an equitable remedy that allows defendants to suppress evidence that was collected in contravention of their Fourth Amendment rights to exclude that evidence at trial in some cases. In the 1960s, the Warren Court significantly expanded Fourth Amendment protections, incorporating the right against the individual states through the 14th Amendment in Mapp v. Ohio.
This remedy, known as the Exclusionary Rule, acts as a deterrent against law enforcement misconduct. While this is an extraordinary remedy, it is not uncommon to see motions to suppress evidence in criminal cases because they are powerful tools in a defense attorney’s arsenal to weaken the prosecution’s case before a trial even begins. However, because this is such a drastic remedy, courts rarely grant motions to suppress in practice. A study conducted by the Department of Justice found that motions to suppress evidence are only sustained at a rate of approximately two percent, and only one and a half percent of defendants went free as a result of a motion to suppress.
The Fourth Amendment does not provide any absolute protections, and there are several exceptions to the Amendment that allow law enforcement officers to conduct searches and seizures without obtaining a warrant. The most applicable exception to Mitchell is the Exigent Circumstances Exception. In Kentucky v. King, the Supreme Court held that “One well-recognized exception applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” In cases where time restraints preclude officers from obtaining a warrant, officers may conduct reasonable searches and seizures without a warrant.
The Evolution of Exigent Circumstances
The Court first held that exigent circumstances would permit officers to take a sample of a suspect’s blood if they were under suspicion of driving while intoxicated in 1966. In Schmerber v. California, the Supreme Court held that the body’s metabolization of the alcohol in the bloodstream was tantamount to the destruction of evidence; therefore, officers would be allowed to use a blood sample upon a showing that the officer reasonably believed, under the totality of the circumstances, that the time it would take to get a warrant would result in the destruction of blood alcohol evidence. The Court adopted a totality of the circumstances test to determine if circumstances sufficient to conduct a warrantless search existed at the time of the search.
Forty-seven years later, the Court in Missouri v. McNeely reaffirmed that exigent circumstances permit warrantless blood draws for those who are suspected of driving while intoxicated. However, the Court explicitly held that the exigency of the circumstances must be reviewed on a case-by-case basis. Justice Thomas issued a dissenting opinion in McNeely that would have created a categorical rule, granting officers a per se authority to conduct warrantless blood draws whenever a delay in obtaining a warrant may result in the destruction of evidence. Just a few years later, the Court took another step toward a per se warrant exception in Mitchell v. Wisconsin, which has caused state courts some confusion on how to apply the exigent circumstances exception.
In the late afternoon of May 30th, 2013, the Sheboygan County Sheriff’s office was notified that a man had gotten very drunk, climbed into a minivan, and driven away. Officers found Mitchell walking down the street close to his van. Mitchell was clearly intoxicated, slurring his words and ‘nearly falling over ‘several times.’” The officers administered a breath test, which registered a BAC of .24, and arrested Mitchell for “Operating a Motor Vehicle While Intoxicated” (OWI) and “Operating with a Prohibited Alcohol Concentration” (PAC).
On the way to the police station, Mitchell’s condition deteriorated, and he passed out in the back seat of the squad car. Mitchell was brought to the hospital for a medical examination and had to be taken inside using a wheelchair. Due to Mitchell’s medical condition, the officer was unable to obtain verbal consent to conduct a blood draw; however, the officer ordered the hospital to draw blood regardless. At trial, Mitchell argued that the blood evidence should be suppressed because it was obtained without a warrant. The state explicitly stated that it was relying on the exigent circumstances exception to avoid the necessity of a warrant. Mitchell was convicted at the trial court for both the OWI and PAC charges, and the Supreme Court of Wisconsin affirmed the trial court’s decision on appeal.
The Supreme Court granted certiorari, and Justice Alito, writing for the plurality, held that,
When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary.
This new rule took a step further towards a per se rule than the Court previously has. However, the plurality opinion did not clearly state whether there is a presumption of exigency in favor of the prosecution or which party bears the burden of proof in this scenario. This ambiguity has led to differing applications at the state level.
Different State High Court Approaches
Disagreement between state high courts regarding who bears the burden of proof has led to a split in how North Carolina and South Carolina apply the Mitchell rule.
In State v. Key, the South Carolina Supreme Court declined to follow the Supreme Court’s lead by establishing a quasi-presumption of exigent circumstances in favor of the state. In 2015, Kathryn Key drove over the center line, striking an oncoming car, and subsequently veered off the road and hit a tree. A South Carolina state trooper attempted to question Key at the scene, but due to her condition, she was rushed to the hospital. The trooper investigated the crash and found a small bottle of liquor in the car. The trooper arrested Key while she was unconscious in the hospital and ordered a nurse to take a blood draw without first obtaining a warrant.
Key argued that there were no exigent circumstances sufficient to order a blood draw; however, while the case was pending, the Supreme Court released its decision in Mitchell. The trial court denied a pre-trial motion to suppress, and Key was subsequently convicted of Driving Under the Influence (DUI). The South Carolina Supreme Court granted review in State v. Key and declined to follow the U.S. Supreme Court holding in Mitchell, writing,
We have carefully considered the Mitchell holding and conclude we will not impose upon a defendant the burden of establishing the absence of exigent circumstances. We hold the burden of establishing the existence of exigent circumstances remains upon the State.
The Court’s application of Mitchell offers strong individual personal protections. Refusing to transfer the burden of proof to the defendant is also more in line with the presumption of innocence that is provided to criminal defendants. The South Carolina Supreme Court argued that interpreting Mitchell to shift the burden of proving exigent circumstances would violate its own Fourth Amendment jurisprudence. However, this does make it more difficult for prosecutors to obtain convictions because it adds to the already high bar of proving their cases beyond a reasonable doubt. Additionally, the lack of a presumption of exigent circumstances leaves law enforcement officers guessing on how to apply the rule, which can lead to inadvertent constitutional violations.
In North Carolina, the state Supreme Court affirmed per curiam the North Carolina Court of Appeals’ opinion in a very similar case, State v. Burris. In November 2014, a State Trooper responded to a single-vehicle crash and found Burris unconscious and trapped in his vehicle. The defendant smelled of alcohol and had open beer cans in the vehicle. Due to the extent of his injuries, Burris had to be airlifted to the hospital. The trooper remained at the scene to wait for the tow truck. Two and a half hours after the trooper arrived at the scene of the crash, the trooper ordered the hospital to take a blood draw from the defendant without obtaining a warrant. The magistrate who could have issued a warrant was only a few minutes away from the hospital.
The Court of Appeals held in favor of the prosecution; however, it offered a very different interpretation of Mitchell than the South Carolina Supreme Court. The court of appeals in Burris wrote this about the Mitchell Rule:
The Court recognized the State has this burden of showing exigency, but was stating that the State meets this burden by showing the defendant was unconscious and in need of medical attention at a hospital. The Court then simply recognized that, where the State makes this showing, the defendant should have the opportunity to offer evidence of other facts to show a lack of exigency.
The Court of Appeals additionally refused to remand the case, holding that the prosecution had met its burden of proof at trial.
This interpretation of the Mitchell rule aligns more closely with the Supreme Court’s “almost always” rule. However, the North Carolina Supreme Court refused to remand the case to the trial court. While the trial court did make a finding of exigency in its order, the record shows that it based its finding on the fact that he was injured and unconscious and that significant time had already passed. In this way, the North Carolina Supreme Court has affirmed an interpretation of Mitchell that provides a quasi-presumption in favor of the state. This result is especially troubling because of the specific facts of this case. The officer who ordered the warrantless blood draw arrived at the hospital almost three hours after the initial crash, which would seem to go against the idea that the circumstances presented an imminent destruction of evidence. Additionally, the magistrate, from whom the officer could have obtained a warrant, was available and only a few moments away from the hospital.
The North Carolina Supreme Court rule, while it holds more faithfully to Mitchell, is less clear and more difficult for trial courts to apply. The significant time lapse between the accident and the ready availability of a warrant would generally be strong evidence that exigent circumstances were not present. If this does not rebut any evidence of exigency, the question remains: What does? This application of the rule makes proving that exigency does not exist an incredibly high bar for the defense, which could encourage law enforcement not to seek warrants to conduct extremely invasive searches.
Conclusion
One thing about the Mitchell rule is clear: state courts will continue applying the rule differently until the United States Supreme Court adopts a clearer rule. The plurality opinion explicitly shifts the burden of proof to the defendant in cases where there is reasonable suspicion of a drunk-driving crime, and the suspect is unconscious. However, the plurality is unclear if the fact that exigent circumstances “almost always” exist creates a presumption, and if so, what is sufficient to rebut that presumption. When states have trouble applying a rule from the Supreme Court, it creates a patchwork of rules that creates uncertainty regarding the constitutional rights of defendants. Furthermore, it creates confusion for prosecutors and law enforcement as they try to apply unclear rules. A bright-line rule, such as Justice Thomas’s, would clearly inform defendants of their rights under the Fourth Amendment and improve the ability of the justice system to apply the rule in practice.
