USA v. BLANCHARD (2024)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND STATEMENTS

Re: ECF 39, 40, 44

Defendant Lee Eric Blanchard moves to suppress evidence and statements from a traffic stop that resulted in his arrest at NASA's Moffett Field. In particular, Blanchard seeks to suppress the results of a blood test determining his blood alcohol content, conducted without a warrant following his arrest, and all of his statements to officers after he was pat down, pursuant to Miranda. Following an evidentiary hearing, the Court GRANTS IN PART and DENIES IN PART Blanchard's motion to suppress. Namely, the Court suppresses the results of the blood test and any statements by Blanchard from when he was handcuffed to when he validly waived his Miranda rights at the police station.

I. BACKGROUND

A. Procedural Background

The parties have fully briefed Blanchard's motion to suppress evidence and statements. ECF 39 (Mot.); ECF 40 (Opp'n); ECF 44 (Reply). The Court held an evidentiary hearing on September 25, 2024, during which it admitted Blanchard's Defense Exhibits L1, L2, M1, and M2 and the Government's Exhibits 1–3 into evidence. ECF 52. Lieutenant William Van Key testified in-person and was subject to direct and cross-examinations by both parties. ECF 52.

B. Factual Background

Based on the evidence proffered with the motion papers and at the evidentiary hearing, the Court relies on the following facts for purposes of this motion. On December 12, 2021, at approximately 5:36 p.m., a NASA Police Department officer pulled over Blanchard for a traffic stop after he failed to stop his vehicle at the main gate into NASA's Moffett Field and drove onto the base. Two more officers arrived at the scene, each with their own police vehicle. The overhead lights on each vehicle were activated throughout the stop, and the three police vehicles blocked the width of the road. The first officer approached Blanchard's driver-side window with his hand on his holstered firearm, spoke with Blanchard, and collected his license and registration. Officer ¹ Van Key then took over as the investigating officer for the incident. He also approached Blanchard's driver-side window with his hand on his holstered firearm.

Van Key observed signs of intoxication while Blanchard was in the front seat of his car, including watery, bloodshot eyes, slurred speech, and the smell of alcohol. Van Key asked Blanchard if he had been drinking, how much, where, and whether he had weapons or open containers in the car, which Blanchard answered. Van Key then asked Blanchard to step out of the car and noted Blanchard's poor balance. Van Key asked Blanchard to turn around so he could check him for weapons. Van Key held Blanchard's wrists behind his back and advised, “You are being detained for possible drunk driving. You understand? Spread your feet for me.” While patting down Blanchard, Van Key asked if Blanchard had been arrested before and for what. Van Key then turned Blanchard to face him but kept one hand on his shoulder while he asked Blanchard again how many drinks he had. Van Key asked Blanchard to track his finger with his eyes, then asked Blanchard if he had consumed any drugs, how many drinks he had, what kind of alcohol, and how long ago. Van Key asked Blanchard if he wanted to do a field sobriety test “at the risk of falling,” or whether he wanted to blow into a Preliminary Alcohol Screening Device (PASD). Blanchard said he just wanted to blow.

Van Key then advised Blanchard, “I'm going to secure you for your own safety, so you don't fall over, okay? Alright, you're being detained for possible drunk driving, you understand? Okay? Other than that, you're not in trouble.” Van Key handcuffed Blanchard. Van Key asked again about the contents in Blanchard's car and on his person and said, “Feel free to speak, okay?” While another officer searched Blanchard's car, Van Key walked Blanchard over to a police vehicle and advised Blanchard that the PASD is not an implied consent test, so Blanchard, by law, would have to give a breath or blood sample if they “take him down for DUI.” Blanchard was unable to successfully complete the PASD. After the second failed attempt, Van Key said, “I am going to give you one more chance. If not it's a refusal,” to which Blanchard replied, “I'm trying, I'm trying.” Van Key responded, “If you're not going to do it, don't waste my time.” After the third and final failed attempt, Van Key placed Blanchard in his car and drove him to the police station. Van Key recorded Blanchard's arrest time as 5:45 p.m.

Van Key read Blanchard his Miranda rights verbatim from the CHP 202 form at 6:40 p.m. in an investigation room. Although no video exists of this exchange, Van Key filled out the CHP 202 form to indicate that Blanchard answered, “Yes” in response to the question, “Having these rights in mind, do you wish to talk with us now?” Van Key also completed a version of the DS 367 form from 2002. Van Key read Blanchard the form's chemical test admonition verbatim and indicated that Blanchard said “No” to taking a breath test and “Yes” to taking a blood test. A technician drew a sample of Blanchard's blood to determine his BAC. Blanchard was handcuffed to a bench by one arm while in the investigation room. He was apologetic and emotional throughout the investigation.

II. SUPPRESSION OF BLOOD TEST RESULTS

Blanchard argues that the results of his blood test must be suppressed for three alternative reasons: (1) the admonition given by Van Key was invalid under the Supreme Court case Birchfield v. North Dakota, 579 U.S. 438, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), rendering Blanchard's agreement to a blood test per se invalid; (2) Blanchard did not validly consent to the blood test; and (3) Van Key did not give Blanchard an admonition and proceeded with a blood test without Blanchard's agreement. Mot. 7–14. The Government argues Blanchard validly consented to the blood test and, in the alternative, the blood draw was justified by exigent circumstances. Opp'n 11–20.

A blood test constitutes a search under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Blood tests, unlike breath tests, may not “be administered as a search incident to a lawful arrest for drunk driving.” Birchfield, 579 U.S. at 476, 136 S.Ct. 2160. Instead, a blood test must be conducted pursuant to a warrant or an exception to the warrant requirement, such as consent or exigent circumstances. Id. at 474–76, 136 S.Ct. 2160. Evidence obtained from an unreasonable search in violation of the Fourth Amendment may not be used by the prosecution in a criminal proceeding. Davis v. U.S., 564 U.S. 229, 231–32, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). The Court addresses both the consent and exigent circumstances exceptions to the warrant requirement here, as raised by the parties.

The Court finds that, based on the totality of the circumstances, Blanchard did not consent to the blood test, and that no exigent circumstances justified the warrantless blood test. The results of the blood test must therefore be suppressed.

C. The Government Has Not Proved Valid Consent to the Blood Test

A “search conducted pursuant to a valid consent is constitutionally permissible.” Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The Government bears the burden of proving consent was freely and voluntarily given prior to a search. Id. (citation omitted). Whether consent “to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Id. at 227, 93 S.Ct. 2041. In examining the circumstances, courts must account for “subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Id. at 229, 93 S.Ct. 2041. Within the Ninth Circuit, courts also consider five factors to determine the voluntariness of consent, none of which are dispositive: (1) whether the defendant was in custody; (2) whether arresting officers have their guns drawn; (3) whether Miranda warnings had been given; (4) whether the defendant was told he had a right not to consent; and (5) whether the defendant was told a search warrant could be obtained. U.S. v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988).

Here, the Government does not meet its burden in proving Blanchard validly and voluntarily consented to the blood test based on the totality of circumstances. Of the factors above, only two support a finding of voluntary consent: that Van Key gave Blanchard Miranda warnings shortly before seeking his consent to the blood test, and that no evidence indicates officers had their guns drawn at the time of Blanchard's consent. Otherwise, Blanchard was in custody in an investigation room at the police station. He was handcuffed to a bench. He had been in custody for a little over an hour. Blanchard was not told that he could refuse consent nor that a search warrant could be obtained.

Birchfield is significant here. In Birchfield, the Supreme Court held “that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” 579 U.S. at 477, 136 S.Ct. 2160. An admonition to the contrary is at least partially inaccurate. Id. at 478, 136 S.Ct. 2160. Here, Van Key testified that he read to Blanchard the admonition from the 2002 version of the DS 367 form, which included the following language: “Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence.”² Gov. Ex. 2. Under the circumstances, this language was not only partially invalid following Birchfield, but “subtly coercive.” See Schneckloth, 412 U.S. at 229, 93 S.Ct. 2041. Blanchard had already been told once in the field that he would have to give a breath or blood sample if arrested. He had also been reprimanded for failing to successfully complete the PASD test. As such, Blanchard may have believed he could not consent to a breath test if he might not be capable of performing it successfully, and therefore had to consent to a blood test or risk criminal penalty.

The Government argues the admonition by Van Key does not violate Birchfield or otherwise undermine Blanchard's consent because “it did not provide that refusal of a test was a crime in-and-of-itself,” but instead depended on the passing of a second event—a conviction for driving under the influence. Opp'n 15. The argument is unavailing because, as the Government itself argues, the pre-Birchfield admonition used by Van Key does not render Blanchard's consent invalid per se. Instead, what matters is the possible coercive influence of the outdated admonition. Moreover, the Government's emphasis that Blanchard “cooperated apologetically” and was emotional may in fact undercut its argument that Blanchard voluntarily consented. See Schneckloth, 412 U.S. at 228–29, 93 S.Ct. 2041 (accounting for the “possible vulnerable subjective state of the person who consents”); see also Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (noting “mere submission to a claim of lawful authority” is insufficient to show valid consent to a search).

D. The Government Has Not Established Exigent Circumstances

One exception to the warrant requirement for a search occurs “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.” Missouri v. McNeely, 569 U.S. 141, 148–49, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (citation omitted). The Government bears the burden of establishing exigent circumstances, including that a warrant could not have been obtained in time. U.S. v. Howard, 828 F.2d 552, 555 (9th Cir. 1987). “To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances.” McNeely, 569 U.S. at 149, 133 S.Ct. 1552.

Although exigent circumstances may be justified by the “imminent destruction of evidence,” “blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a ‘now or never’ situation.” Id. at 149, 153, 133 S.Ct. 1552. The certain, gradual dissipation of blood alcohol content is insufficient, on its own, to justify a warrantless blood test. See id. at 152–53, 133 S.Ct. 1552 (rejecting categorical rule permitting warrantless blood testing in drunk-driving cases).

The Government does not identify any exigent circumstances justifying the warrantless blood test. The mere need to take a blood test, as based on Blanchard's inability to complete the PASD breath test, does not in itself establish an exigency, and the Government's suggestion otherwise conflates the issues. See Opp'n 19. In McNeely, the Supreme Court summarized and applied its holding in a prior case that concluded exigent circumstances justified a warrantless blood test where the police had to take the defendant, suspected of driving under the influence, to the hospital for injuries following a car accident and had to investigate the accident scene. McNeely, 569 U.S. at 150–51, 133 S.Ct. 1552. As a result, the police did not have time to secure a warrant while the evidence—the alcohol in the defendant's bloodstream—dissipated. Id.

The circumstances here are not analogous. The Government implies it lost valuable time to seek a warrant because officers had to assist Blanchard with his balance, monitor Blanchard throughout the incident, attend to Blanchard's vehicle, and “maintain security of the federal property.” Opp'n 18–19. None of these responsibilities rise to the level of urgency inherent in attending to injured accident victims, or even appear out of the norm for the NASA officers’ expected duties. Instead, Van Key testified to the rather routine and commonplace nature of DUI arrests, including at Moffett Field. The officers involved also discussed how one would attend to Blanchard's vehicle while Van Key conducted the intake and questioning of Blanchard. Another officer came in and out of the investigation room during the intake and questioning led by Van Key, suggesting there was no shortage of officers available to seek a warrant, especially considering “the more expeditious processing of warrant applications” now available to officers. See McNeely, 569 U.S. at 154, 133 S.Ct. 1552. Further, the Government's insistence that the investigation room was “relaxed, cordial, and cooperative” undermines their argument of an exigency. See Opp'n 13. “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” McNeely, 569 U.S. at 152, 133 S.Ct. 1552.

Because Blanchard did not validly consent to the blood test and there were no exigent circumstances, the warrantless blood test violated Blanchard's Fourth Amendment rights and the results must be suppressed.

III. SUPPRESSION OF IN-CUSTODY STATEMENTS

Blanchard argues that he was subject to custodial interrogation, and should have received Miranda warnings, when Van Key secured Blanchard's hands behind his back and patted him down. Blanchard also argues the Government has not established that he validly waived his Miranda rights. Mot. 15–16; Reply 12–14.

A defendant must be given Miranda warnings when subjected to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444–45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). To determine whether a defendant is in police custody, “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (citations omitted). Courts use an objective standard to determine whether a reasonable person would conclude they could leave freely. U.S. v. Beraun-Panez, 812 F.2d 578, 580 (9th Cir. 1987). In doing so, courts examine the totality of the circumstances, including an officer's statements and acts. Lowe v. U.S., 407 F.2d 1391, 1398 (9th Cir. 1969). Other relevant factors include: “(1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual.” Beraun-Panez, 812 F.2d at 580. Police interrogation “refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

A defendant may waive their Miranda rights so long as the waiver is voluntary, knowing, and intelligent. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Whether a defendant validly waived their Miranda rights depends on the totality of the circumstances. Id. “There is a presumption against waiver, of which the Government bears the burden of overcoming by a preponderance of the evidence.” U.S. v. Crews, 502 F.3d 1130, 1139–40 (9th Cir. 2007). To protect a defendant's Fifth Amendment rights, statements obtained in violation of Miranda must be excluded from the prosecution's case in chief. Oregon v. Elstad, 470 U.S. 298, 306–07, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

The Court finds Blanchard was subject to custodial interrogation at the point he was handcuffed by Van Key and told for a second time he was being detained. But the Court also finds that the Government has met its burden in establishing Blanchard was advised of and waived his Miranda rights around 6:40 p.m. As such, Blanchard's statements from the time he was handcuffed to the time of his waiver are suppressed.

A. Custodial Interrogation Began When Blanchard was Handcuffed

Based on the totality of the circumstances, Blanchard was in custody at the time he was handcuffed. Given the inherent restraint on movement, handcuffing can be a significant point at which a police stop crosses the line into custody. See, e.g., U.S. v. Booth, 669 F.2d 1231, 1236 (9th Cir. 1981) (upholding district court determination that defendant was in custody when told he was a suspect, frisked, handcuffed, and was awaiting police transport); U.S. v. Brady, 819 F.2d 884, 887 (9th Cir. 1987) (concluding defendant was in custody when stopped by two officers at gunpoint and handcuffed before questioning); U.S.A. v. Magdirila, No. 17-cr-00729-CAS-1, 2018 WL 1472498, at *11 (C.D. Cal. Mar. 22, 2018) (finding defendant was in custody where he was surrounded by multiple police vehicles, told he was detained, handcuffed, and placed in a police vehicle); see also U.S. v. Juvenile (RRA-A), 229 F.3d 737, 743 (9th Cir. 2000) (finding arrest at time of handcuffing). Cases finding otherwise have concerned stops at the border, which are more permissive, and situations where a defendant is suspected of a violent crime or handcuffed for officer safety. See, e.g., U.S. v. Cervantes-Flores, 421 F.3d 825, 828 (9th Cir. 2005), overruled on other grounds by Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (handcuffing suspect following a chase at the border); Booth, 669 F.2d at 1236 (“Handcuffing a suspect does not necessarily dictate a finding of custody ․ Strong but reasonable measures to insure the safety of the officers or the public can be taken without necessarily compelling a finding that the suspect was in custody.”). Here, Blanchard was not detained at the border, suspected of a violent crime, or a threat to officer safety. Van Key instead stated he was handcuffing Blanchard for Blanchard's own safety.

Moreover, Blanchard was surrounded by three police vehicles with flashing lights blocking the road. Although Van Key led the investigation, two other officers were on the scene and assisted. Van Key and another officer initially approached Blanchard's car with their hands on their holstered weapons. Van Key also testified that access to Moffett Field is restricted to those with a purpose for being on base, and that no other cars or individuals were nearby during the police stop, which was out of view of public roads. See Def. Exs. L1, L2, M1, M2. Therefore, the circumstances here differed from a typical non-custodial traffic stop conducted by one officer on public roads. Compare Berkemer v. McCarty, 468 U.S. 420, 438, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (emphasizing that the public nature of a typical traffic stop reduces the risks of coercive police questioning), and Pennsylvania v. Bruder, 488 U.S. 9, 11, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988) (applying Berkemer to find “a single police officer ask[ing] respondent a modest number of questions and request[ing] him to perform a simple balancing test at a location visible to passing motorists” did not amount to custody), and Lowe, 407 F.2d at 1394 (“The questioning of a driver of a stopped car on an open highway by one policeman, without more, cannot be characterized as a ‘police dominated’ situation or as ‘incommunicado’ in nature.”), with Beraun-Panez, 812 F.2d at 582 (upholding district court determination that defendant was in custody where interrogation “took place well away from the public view, in a remote area where no passersby would likely be present”).

Despite Van Key's assurances that Blanchard was being handcuffed for his personal safety and was not otherwise in trouble, Van Key also told Blanchard twice that he was suspected of driving under the influence and being detained. On balance, a reasonable person would not believe they were free to leave at the point Blanchard was handcuffed.

The Court declines to find Blanchard was in custody at the time Van Key conducted the pat-down, as Blanchard argues. Without considering whether the pat-down itself was constitutional, the Court notes that others in the Ninth Circuit have considered pat-downs independent of custody, often finding custody did not begin until a point after a pat-down conducted for officer safety. See U.S. v. Chong, No. 15-cr-00176-AB, 2015 WL 5156438, at *13 (C.D. Cal. Sept. 2, 2015) (finding defendant was not in custody even following pat-down) (“Nor does a frisk or pat-down search rise to the level of a formal arrest for the purposes of custody under Miranda.”); U.S. v. Bruno, No. 05-cr-0239-ELJ, 2006 WL 1308567, at *5–6 (D. Idaho May 11, 2006) (“The fact that the question occurred while [the officer] was conducting the frisk does not convert the exchange into an arrest or custody for purposes of Miranda.”); U.S. v. Alonso, No. 20-cr-00045-SLG, 2022 WL 204553, at *2–4 (D. Alaska Jan. 24, 2022) (finding defendant was not in custody after pat-down until he was handcuffed and told he was under arrest).

Finally, the Court finds Blanchard was interrogated by Van Key for purposes of Miranda because Van Key knew his repeated questions about Blanchard's alcohol intake and criminal history were reasonably likely to elicit incriminating responses. See U.S. v. Kennedy, 573 F.2d 657, 661 (9th Cir. 1978) (finding custodial interrogation where officers “solicited information about a past criminal record). In fact, Van Key testified that he subjected Blanchard to “investigatory questioning” during the stop.

B. The Government Has Established a Valid Miranda Waiver

Nonetheless, the Court finds credible Van Key's testimony that he read Blanchard his Miranda rights verbatim from the CHP 202 form at 6:40 p.m., while in the investigation room. Van Key recorded Blanchard's response, in quotation marks, as “Yes,” when Blanchard was asked whether, having understood his rights, he wished to speak with officers. Gov. Ex. 1. The Court therefore finds Blanchard voluntarily and knowingly waived his Miranda rights.

As a result, the Court excludes Blanchard's statements from the time he was handcuffed to the time he waived his Miranda rights. The Court does not exclude his statements made after the valid waiver.

IV. CONCLUSION

The Court GRANTS IN PART and DENIES IN PART Blanchard's motion to 11 suppress. The Court suppresses the results of Blanchard's blood test and Blanchard's statements from the time he was handcuffed to the time he waived his Miranda rights.

IT IS SO ORDERED.

FOOTNOTES

1.   Since Blanchard's arrest, Van Key has been promoted from Officer to Lieutenant.

2.   Following Birchfield, the California DMV updated the chemical test admonition on the DS 367 form to read: “Refusal or failure to complete breath or urine testing will result in a fine and mandatory imprisonment if you are convicted ․” Gov. Ex. 3.

NATHANAEL M. COUSINS, United States Magistrate Judge