2013-05

South Carolina Court Administration

South Carolina Supreme Court
Columbia, South Carolina

MEMORANDUM

Pursuant to the Order of the Chief Justice designating Chief Magistrates and Associate Chief Magistrates Statewide, each chief magistrate is required to establish with the other magistrates of the County a schedule so arranged that a magistrate will be available, in person or on-call, at all times in the County to issue warrants and conduct bond proceedings. Traditionally, it has been the chief magistrate's responsibility to file this document in writing with the Sheriff of the County, the person in charge of the detention facility if this is someone other than the Sheriff, the clerk of court of the County, each magistrate in the County, and the Office of SC Court Administration.

Due to the issuance of Missouri v. McNeely, 569 U.S. ____ (2013), and a possible increase in the request for search warrants after normal business hours, please provide a copy of this document as issued each month to the supervisory officers in your regions of the State with the Department of Natural Resources and the Department of Public Safety, as well as any other law enforcement agencies who may have interest in the schedule. This would, of course, be in addition to those entities and officers designated in the first paragraph of this memorandum. If your duty and on-call roster was just issued for the month of August, please provide the officers and entities referenced in this memorandum with that document.

Please provide this notice to the chief municipal judges located in your County. Finally, please remember to provide this Office with that schedule as well. As a reminder, I also provide a copy of the memorandum issued from this Office addressing Missouri v. McNeely.

Your prompt attention to this matter is appreciated. Should you have questions, please do not hesitate to contact this Office.

CC: Buford S Mabry, Jr., General Counsel
        Department of Natural Resources

        Warren Ganjehsani, General Counsel
        Department of Public Safety

        Jeff Moore, Director
        SC Sheriff's Association

South Carolina Court Administration

South Carolina Supreme Court
Columbia, South Carolina

MEMORANDUM

The US Supreme Court issued an opinion dated April 17, 2013, addressing a fourth amendment violation claim in the context of a DWI investigation arising in the State of Missouri. After a traffic stop, McNeely was placed under arrest for suspicion of DWI. McNeely refused to submit to blood-alcohol content (BAC) testing, so the arresting officer, without first seeking a search warrant, transported the defendant to a hospital and ordered a lab technician to obtain a blood sample from McNeely. The results of the blood sample indicated a BAC over the legal limit, and McNeely was charged with DWI.

At trial, McNeely moved to suppress the results of the blood test, arguing that under the circumstances, obtaining his blood without having first obtaining a search warrant constituted an illegal search and violated his fourth amendment rights. The trial court agreed, holding that the exigency exception to the search warrant requirement did not apply because, apart from the fact the BAC of an individual dissipates over time, there were no circumstances presented that the law enforcement officer faced an emergency in which he could not have obtain a search warrant prior to requiring that the blood sample be taken. The case was ultimately heard by the Missouri Supreme Court, which affirmed the trial court.

In a fractured opinion, the Supreme Court ruled in McNeely that the natural metabolization of alcohol in the blood stream does not present a perseexigency that justifies an exception to the Fourth Amendment’s warrant requirement for non-consensual testing in all drunk driving cases. Rather, exigency must be determined case by case based on the totality of the circumstances. The Court did recognize that alcohol in the body begins to dissipate once it has been fully absorbed and continues to decline until it is eliminated. The Court also recognized that a significant delay in testing will negatively affect the probative value of the test result. Nevertheless, the Court held that 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.” Unfortunately, the Court did not identify the circumstances under which an officer would be justified in concluding that exigent circumstances existed or give any indication of how much evidence an officer must allow to be destroyed before he can proceed with a warrantless draw.

The practical effect to magistrates and municipal judges of this decision is that you will likely see an increase in requests for search warrants to obtain blood samples in DUI cases. While the McNeely decision was concerning a regular DWI case, it is anticipated that requests for search warrants will likely come in this State from felony DUI cases in which defendants refuse to consent to BAC testing or are unable to consent. However, the decision and circumstances necessitating a request for search warrant from a neutral and detached judge is totally within the purview of law enforcement.

I provide below a provision under Search Warrant's in the "Criminal" section of the Bench Book for Magistrates and Municipal Judges, addressing the issuance of search warrants from a suspect's body. While the text discusses a search warrant for DNA evidence, the section would be applicable to the issuance of a search warrant for a blood sample under McNeely. Please ensure that any search warrant for blood samples you issue complies with the mandates in McNeely, as well as in the South Carolina Supreme Court and Court of Appeals decisions cited below. I also provide below a link to the full text of the US Supreme Court decision, Missouri v. McNeely. I strongly urge you to read the entire opinion, including the concurring and dissenting opinions.

Should you have questions concerning this matter, please do not hesitate to contact this office.

http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf

c. Search Warrant For Evidence From a Suspect’s Body Pursuant to §17-13-140

A search warrant allowing the government to obtain evidence from a suspect’s body is a search and seizure under the Fourth Amendment and, therefore, must comply with constitutional and statutory requirements.  To secure a warrant for the acquisition of such evidence, the State must establish the following elements:

(1) probable cause to believe the suspect committed the crime;

(2) a clear indication that relevant evidence will be found; and

(3) the method used to secure it is safe and reliable.

he affidavit must set forth facts as to why the police believe the suspect whose DNA sought is the person who committed the crime. The affidavit must set forth the source of the facts alleged in it and must contain a statement that the information or its source is reliable.  The State must show there is other DNA evidence in the case to which it can be compared, or in some other manner clearly indicate the relevance of the DNA sought.  The magistrate must also consider the seriousness of the crime and the importance of the evidence to the investigation weighing “the necessity for acquiring the involuntary nontestimonial identification evidence against constitutional safeguards prohibiting unreasonable bodily intrusions, searches, and seizures.”  See State v. Baccus, 367 S.C. 41, 625 S.E.2d 216 (2006) and State v. Jenkins, 398 S.C. 215, 727 S.E.2d 761 (S.C.App. 2012).