IN THE IOWA DISTRICT COURT FOR POLK COUNTY
STATE OF IOWA,
Plaintiff,
vs.
:
CRIMINAL NO. FECR180992
:
:
WILLIAM J. PINEGAR,
:
Defendant.
:
BRIEF IN SUPPORT OF
DEFENDANT’S MOTION TO
SUPPRESS EVIDENCE
COMES NOW Defendant, William J. Pinegar, and for his Brief in Support
of Defendant’s Motion to Suppress Evidence, states the following:
Introduction
This case arises out of a fatal motor vehicle accident. William J. Pinegar
was the driver who admitted at the scene that he used drugs that evening. A blood
sample was drawn from Mr. Pinegar without a warrant, which indicated 163 ng/ml
of methamphetamine and 2 ng/ml of marijuana present in his system. Mr. Pinegar
was then charged with: Homicide by Vehicle, in violation of Iowa Code section
707.6A(1); Eluding, in violation of Iowa Code section 321.279; and Theft in the
Second Degree, in violation of Iowa Code section 714.1 and 714.2(2).
As will be discussed in this Brief the fighting issues are as follows:
I.
Does the 4th Amendment permit the warrantless withdrawal of Mr.
Pinegar’s blood for the purpose of obtaining a drug screen? This is
only permitted under strictly circumscribed circumstances when
consumption of alcohol is suspected due to the rapid dissipation rate
of alcohol. There is sufficient time to obtain a warrant when
investigating the potential use of narcotics.
1
II.
Did Officer Hake possess the requisite reasonable grounds to believe
that Mr. Pinegar was operating a vehicle while under the influence
of controlled substances? There was insufficient evidence for
Officer Hake to render such an opinion as his it was based solely on
Mr. Pinegar’s admission to using drugs that evening.
III.
Were the incriminating statements from Mr. Pinegar obtained in
violation of his constitutional right against self incrimination? They
were, because Mr. Pinegar was in custody and subject to
interrogation without being advised of his constitutional rights per
Miranda.
IV.
Is all or part of a “Drug Recognition Expert’s” testimony admissible
if he does not fully comply with the standardized 12-step drug
recognition protocol? It is not. In order for a “Drug Recognition
Expert’s” testimony to be admissible, the entire 12-step drug
recognition protocol must be completed which was not done in this
case.
Brief Points II and IV are issues of first impression in the State of Iowa.
Factual Statement
On January 19, 2004 at approximately 11:00 p.m., Deputy Cass Bollman of
the Polk County Sheriff’s Department was southbound on NE 26th Street in Des
Moines, when he observed a dark colored SUV driving south at a high rate of
speed. Deputy Bollman activated his emergency lights at approximately 11:00
p.m., but the vehicle sped up and refused to stop. A high-speed chase ensued
ending with a vehicle collision at the intersection of Mahaska and E 30th Street.
As a result of the collision, the black SUV traveled approximately 75 feet, rolling
onto the passenger’s side, trapping the passenger, later identified as Melissa
Sayles, under the vehicle. Ms. Sayles died at the scene.
2
According to Deputy Bollman, as he approached the vehicle, the driver of
the vehicle was kicking the windshield in an attempt to get out. The driver, later
identified as the Defendant, William J. Pinegar, exited the vehicle through the
driver’s door and was taken into custody. The onboard video camera, which also
contains audio, captured the entire chase, collision, and subsequent questioning of
Mr. Pinegar at the accident scene.
At 23:05:14, Deputy Bollman approached the vehicle with his gun drawn
and orders Mr. Pinegar not to move telling him to “get on the ground.” The
Deputy then proceeds to question Mr. Pinegar as to why he was “running”.
Deputy Bollman then repeatedly questioned Mr. Pinegar as to whether or not he
was driving the vehicle at the time of the accident. At 23:06:40, Deputy Bollman
states “you were driving, who was driving?” Mr. Pinegar responds that Ms.
Sayles was driving to which the Deputy responds “it couldn’t have been her.”
Again at 23:08:52, Deputy Bollman exclaims “you had to be driving” which Mr.
Pinegar again denies. Finally at 23:10:20, Deputy Bollman states to another
officer directly in front of Mr. Pinegar, that he was confident that Pinegar was the
driver. The Deputy specifically states in the direction of and directed to Mr.
Pinegar: “he was driving but he does not want to admit it.” In response to that
accusation, Mr. Pinegar admits to being the driver of the vehicle. At 23:12:00 an
unidentified officer asks Mr. Pinegar if he had been drinking, to which he replied
no; and had he been using drugs, to which he replied yes. At no time while
3
present at the accident scene, was Mr. Pinegar informed of his constitutional rights
per Miranda.
As a result of Mr. Pinegar’s admissions to using narcotics that evening, a
“Drug Recognition Expert” was requested to meet Mr. Pinegar at the emergency
room. Mr. Pinegar was taken to the emergency room by way of an ambulance, as
he had suffered an apparent head injury. Approximately ten minutes after his
arrival at the emergency room, Mr. Pinegar was met by “Drug Recognition
Expert”, Michael Hake. According to Officer Hake, he informed Mr. Pinegar of
his constitutional rights, per Miranda at 23:47 (11:47 p.m.), however, no written
waiver has been produced. Officer Hake conducted portions of a drug recognition
evaluation, beginning at 23:47 (11:47 p.m.) and ending at 01:37 (1:37 a.m.).
According to the Officer, Implied Consent was invoked at 00:21 (12:21 a.m.) and
a blood sample was obtained from Mr. Pinegar at approximately 00:37 (12:37
a.m.). Officer Hake states in his report that “based on William’s statement that he
had smoked marijuana and meth and due to William was the driver of a vehicle
which had been involved in a motor vehicle accident resulting in a death, I read
the implied consent advisory to William at 0021/02-20-04 and requested a blood
sample, to which William consented and signed the implied consent form.”
Legal Argument
I.
THE BLOOD SAMPLE OBTAINED FROM MR. PINEGAR
CONSTITUTED A WARRANTLESS SEARCH AND SEIZURE IN
VIOLATION OF THE 4TH AND 14TH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION
8 OF THE IOWA CONSTITUTION.
4
The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. Amends IV & XIV. “To protect citizens against
unreasonable searches and seizures, the Fourth Amendment requires that the
government must obtain a warrant before it may search or enter an area in which a
person has a reasonable expectation of privacy.” State v. Legg, 633 N.W.2d 763,
767 (Iowa 2001). When an intrusion into the human body is involved, a search
warrant is ordinarily required. Schmerber v. California, 384 U.S. 757, 772 (1966).
Warrantless searches and seizures are per se unreasonable unless they come within
a few jealously and carefully drawn exceptions. State v. Garcia 461 N.W.2d 460,
463 (Iowa 1990). Valid exceptions to the warrant requirement exist for those
searches that are: (1) consented to; (2) based on probable cause coupled with
exigent circumstances; (3) incident to arrest; or (4) plain view. State v. Eubanks,
355 N.W.2d 57, 58-59 (Iowa 1984). When the government has acted without a
warrant, the ultimate burden of persuasion is upon the government to show that its
evidence is not tainted. Alderman v. United States, 344 U.S. 165, 183 (1969).
The United States Supreme Court has previously held that a warrantless
withdrawal of a blood sample for the purposes of determining the individual’s
blood-alcohol content is permissible so long as it is done in a reasonable manner
and “under stringently limited conditions”. (emphasis added) Schmerber, 384 U.S.
at 772. The Supreme Court’s justification for this exception was that “the
5
percentage of alcohol in the blood begins to diminish shortly after drinking stops,
as the body functions to eliminate it from the system.” Id. “Particularly in a case
such as this (involving vehicular accident) where time had to be taken to bring the
accused to a hospital and to investigate the scene of the accident, there was no
time to seek out a magistrate and secure a warrant.” Id. at 771. The Court
concluded: “[g]iven these special facts, we conclude that the attempt to secure
evidence of blood-alcohol content in this case was an appropriate incident to
petitioner’s arrest.” (emphasis added) Id. Despite its ruling upholding the
warrantless withdrawal of the defendant’s blood, the Court strongly cautioned as
to the limitations of its holding.
“We thus conclude that the present record shows no violation of the
petitioner’s right under the Fourth and Fourteenth Amendments to be free
of unreasonable searches and seizures. It bears repeating, however, that we
reach this judgment only on the facts of the present record. The integrity of
an individuals person is a cherished value of our society. That we hold
today 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.
(emphasis added) Id. at 772.
In the instant case, Mr. Pinegar was suspected of being under the influence
of controlled substances. According to Officer Hake, Mr. Pinegar admitted to
using methamphetamine at 9:00 or 10:00 p.m., and marijuana at approximately
3:00 p.m. on January 19, 2004. The accident occurred at approximately 11:00
p.m. on January 19, 2004. Marijuana is believed to remain in an individual’s
system for approximately thirty days. Methamphetamine is believed to remain in
6
an individual’s system for approximately two – three days. The exigency
justifying the warrantless withdrawal of the suspect’s blood in Schmerber simply
did not exist in this case. The Officer had sufficient time to take his findings,
present them to a neutral and detached magistrate, and obtain a search warrant if
the magistrate believed that probable cause existed. Again quoting the United
States Supreme Court in Schmerber: “The requirement that a warrant be obtained
is a requirement that inferences to support the search ‘be drawn by a neutral and
detached magistrate instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime.’” Id. at 770. “The importance of
informed, detached and deliberate determinations of the issue whether or not to
invade another’s body in search of evidence of guilt is indisputable and great.” Id.
Based upon the Supreme Court’s holding in Schmerber, Officer Hake was
required to obtain a search warrant prior to withdrawing the blood sample and his
failure to do so violated Mr. Pinegar’s constitutional rights afforded him by the 4th
and 14th Amendments of the United States Constitution and Article 1 section 8 of
the Iowa Constitution and must be suppressed. Mapp v. Ohio, 367 U.S. 643
(1961).
A. Mr. Pinegar did not consent to the withdrawal of his blood.
It is anticipated that the State will argue that Mr. Pinegar voluntarily
consented to the withdrawal of the blood sample at issue. The Fourth and
Fourteenth Amendments require that the State demonstrate that consent was in
fact voluntarily given and not the result of duress or coercion, expressed or
7
implied. State v. Drury, 2000 WL 1827815, 4 (Iowa App.) “It is well established
law that it is not the defendant’s burden to show his consent was not voluntarily
given without coercion, but instead is the State’s heavy burden to prove by a
preponderance of the evidence that the consent was willing and voluntary.”
(emphasis added) Id. at 5. “Consent given to search must be unequivocal,
specific, and freely and intelligently given.” (emphasis added) State v. Howard,
509 N.W.2d 764, 767 (Iowa 1993). The State’s burden cannot be discharged by
showing no more than acquiescence to a claim of lawful authority. State v. Carter,
267 N.W.2d 285 (Iowa 1978) (holding that acquiescence without objection to a
search carried on by one with apparent authority to do so is not enough to establish
voluntary consent); See also Florida v. Royer, 460 U.S. 491, 496 (1983).
According to the “Implied Consent Form” authored by Officer Hake in
connection with this case, Mr. Pinegar did not consent to the Officer’s request for
a blood sample. Contained in part C of the Implied Consent Form is a place for
the defendant to sign, indicating his consent to the requested test. Mr. Pinegar’s
signature is contained under the “Request for Alternate Specimen” portion of the
form applying to requests for breath or urine. The consent box is scribbled as
opposed to a clear “x”. Under the “Request for a Specimen of Drugs” portion of
the form, there is also a place for the suspect to consent to the withdrawal of a
blood or urine sample based upon the officer purporting to have “reasonable
grounds” to believe that the individual is under the influence of a drug other than
alcohol or a combination of alcohol and another drug. Officer Hake’s signature is
8
at the bottom of part C, however, Mr. Pinegar’s signature that would indicate his
purported consent to the withdrawal of a blood sample, is noticeably absent. As
such, the objective evidence available to the Court fails to establish that Mr.
Pinegar voluntarily consented to the withdrawal of the disputed blood sample.
B. In the event that the Court finds that Mr. Pinegar did consent to the
withdrawal of the blood sample, his consent was coerced.
When a law enforcement officer invokes Implied Consent procedures, he is
required by law to inform the defendant that if he/she does not consent to the
withdrawal of the requested sample, his/her driving privileges will be revoked.
Iowa Code section 321J.8. The suspect’s driving privileges are suspended for a
much longer period of time if the suspect refuses the test as opposed to taking the
test and failing. Iowa Code section 321J.9. The purpose of obtaining a test
sample is for obtaining physical evidence that will be used against the defendant at
trial. This procedure is in and of itself coercive.
i.
The threat of license revocation for refusing to consent to the
search of Defendant’s person and promise of lesser license
revocation if the Defendant consents, violates the 14th Amendment
of the United States Constitution.
The 14th Amendment to the United States Constitution prohibits promises
of leniency or a threat of adverse consequences if a suspect refuses to cooperate
with a police investigation. See State v. Kase, 344 N.W.2d 223 (Iowa 1984). In
the context of determining whether or not a confession was freely and voluntarily
given, the Iowa Supreme Court has held that “to be admissible, a confession must
be free and voluntary: that is, must not be extracted by any sort of threats or
9
violence, nor obtained by any direct or implied promises, however slight, not by
the exertion of any improper influence.” (emphasis added) Id. at 225; citing Brady
v. United States, 397 U.S. 742, 753 (1970). “Statements are involuntary when
induced by promises of leniency.” Id. The same goes for whether or not an
individual’s consent to search is freely and voluntarily given. Id. “Defendant
urges that any consent which she gave to law enforcement officers to search her
apartment was involuntary for the same reasons that her oral statements of June 13
were involuntary. We agree with this contention. . . .” Id.
By invoking Implied Consent, Officer Hake was required to inform Mr.
Pinegar that if he refused the search of his person, his driving privileges would be
suspended for twice the period that it would if he simply consented to the search
of his person and allowed the State to obtain incriminating evidence that would be
used against him at trial. See Iowa Code section 321J.9. Officer Hake and the
State contend that the officer complied with the Implied Consent law. As such,
there is no other conclusion for this Court to reach but that by invoking Implied
Consent, the State obtained Mr. Pinegar’s consent to a search of his person
through the use of threats or direct or implied promises. This amounts to an
involuntary consent and any evidence obtained as a result of that involuntary
consent must be suppressed.
II.
OFFICER HAKE DID NOT POSSESS THE REQUISITE
“REASONABLE GROUNDS” TO INVOKE IMPLIED
CONSENT.
10
Even if Officer Hake was not required to obtain a search warrant and the
Court concludes that Mr. Pinegar consented to the withdrawal of his blood and his
consent was not coerced, Officer Hake was still required to have “reasonable
grounds” to invoke Implied Consent. Officer Hake claims to have obtained a
sample of Mr. Pinegar’s blood by invoking the Implied Consent provisions
contained in Iowa Code section 321J.6. Iowa Code section 321J.6 authorizes an
officer to request a blood, urine or breath sample if the officer has “reasonable
grounds” to believe the person was operating a motor vehicle in violation of Iowa
Code section 321J.2 and if any one the seven delineated conditions exist. Mr.
Pinegar does not contest that one of the delineated conditions existed (he was
involved in a motor vehicle accident resulting in personal injury or death). Iowa
Code section 321J.6(b). However, he does contest that the “reasonable grounds”
requirement was met. “Reasonable grounds” to believe a defendant is under the
influence of a controlled substance is an issue of first impression in Iowa.
A. The applicable standard for determining whether or not an officer has
“reasonable grounds” pursuant to Iowa Code section 321J.6, is one of
probable cause. Any lesser standard would be in violation of Article 1
section 8 of the Iowa Constitution and the 4th and 14th Amendments of
the United States Constitution.
“Reasonable grounds” exist if the facts and circumstances known to the
officer at the time action was required would have warranted a prudent person’s
belief that an offense had been committed.” State v. Braun, 495 N.W.2d 735, 738739 (Iowa 1993). “Probable cause” exists when “the facts and circumstances
within the arresting officer’s knowledge would warrant a person of reasonable
11
caution to believe that an offense is being committed.” State v. Horton, 625
N.W.2d 362, 364 (Iowa 2001). These standards are identical. Any interpretation
that a lesser standard of proof applies to the invocation of Implied Consent would
be to ignore the well-established mandates of Article 1 section 8 of the Iowa
Constitution and the 4th and 14th Amendments of the United States Constitution.
The purpose of invoking Implied Consent is to obtain a blood, breath or
urine sample from an individual for use against that individual in a criminal
prosecution. The withdrawal of such a sample, blood in this case, constitutes a
search, falling within the protection of the constitutional provisions prohibiting
unreasonable search and seizures. State v. Palmer, 554 N.W.2d 859, 861 (Iowa
1996); citing Schmerber, 384 U.S. at 776 (1966). Ordinarily, search warrants are
required “where intrusions into the human body are concerned.” Id. However,
according to the United State’s Supreme Court implied consent laws constitute an
exception to the warrant requirement under “stringently limited conditions.”
(emphasis added) Schmerber, 384 at 772. While the Implied Consent law may be
an exception to the warrant requirement under the appropriate circumstances, the
fundamental concept behind both Article 1 section 8 of the Iowa Constitution and
the 4th Amendment of the United State’s Constitution, still exists; a search of an
individual’s person, must be supported by probable cause. Article 1 Section 8
Iowa Constitution; and U.S. Const., Amend., IV.
The United States Supreme Court applied the probable cause standard in
Schmerber. The Court found that probable cause existed to believe that the
12
defendant was under the influence of intoxicating liquor. Id. at 768. Because it
first found that probable cause existed, the Court then went on to consider the
reasonableness of the intrusion. The Court stated: “The interests in human dignity
and privacy which the Fourth Amendment protects forbid any such intrusion on
the mere chance that desired evidence might be obtained. In the absence of a
clear indication that in fact such evidence will be found, these fundamental human
interests require law officers to suffer the risk that such evidence may disappear
unless there is an immediate search.” (emphasis added) Schmerber, 554 N.W.2d
at 769-770. The Court then went on to caution: “that we today hold that the
Constitution does not forbid the States minor intrusions in the an individual’s body
under stringently limited conditions in no way indicates that it permits more
substantial intrusions, or intrusions under other conditions. (emphasis added) Id.
at 772.
To the extent that Iowa’s Implied Consent law permits withdrawal of a
blood sample (a search of the person) based upon a standard less than probable
cause, it is in violation of the Article 1 Section 8 of the Iowa Constitution and the
4th and 14th Amendments to the United States Constitution; and the Supreme
Court’s holding in Schmerber v. California.
B. Mr. Pinegar’s mere admission to consuming controlled substances is
insufficient to establish reasonable grounds/probable cause to believe
that he was operating a motor vehicle in violation of Iowa Code section
321J.2.
13
Officer Hake invoked Implied Consent “based on William’s statement that
he had smoked marijuana and meth and due to William was the driver of a vehicle
which had been involved in a motor vehicle accident resulting in death. . . .”
Thus, the only facts and circumstances known to the Officer, leading him to
believe that Mr. Pinegar had violated Iowa Code section 321J.2, was Mr. Pinegar’s
purported admission to smoking marijuana and meth. Assuming that Mr. Pinegar
did indeed make an admission to consuming marijuana and meth earlier in the
evening; and further assuming that those admissions were not obtained in violation
of Mr. Pinegar’s 5th Amendment rights; the mere admission to consumption of
narcotics or intoxicating beverages is insufficient to provide an officer with
reasonable grounds/probable cause to believe that the he was actually operating a
motor vehicle in violation of Iowa Code section 321J.2. An individual violates
Iowa Code section 321J.2 when he/she operates a motor vehicle either: (1) under
the influence of an alcoholic beverage or other drug or a combination of such
substances; or (2) while having an alcohol concentration of .08 or more; or (3)
while any amount of a controlled substance is present in the person, as measured
in the person’s blood or urine. Iowa Code Section 321J.2(1).
Officer Hake does not contend that he had reason to believe that Mr.
Pinegar was under the influence of alcohol. The only issue is whether or not
Officer Hake had reasonable grounds/probable cause to believe that Mr. Pinegar
was operating a motor vehicle “while any amount of a controlled substance was
present in his system.” Iowa Code section 321J.2(1)(c). The phrase “any amount”
14
used in this Code section does not mean the slightest measurement of controlled
substances present in the individual’s system. Iowa Code section 321J.2(8)(c)
goes on to require that “the department of public safety shall adopt nationally
accepted standards for determining detectable levels of controlled substances in
the division of criminal investigation’s initial laboratory screening test for
controlled substances.” Pursuant to said mandate, the department of public safety
promulgated Iowa Administrative Code section 661-7.9(321J) setting forth the
minimum levels of narcotics “which will result in a finding that a controlled
substance is present at a detectable level.” The minimum levels applicable to this
case are: (a) Marijuana metabolites = 50 ng/ml; and (b) Amphetamines = 1000
ng/ml.” Iowa Administrative Code section 661-7.9(321J). Because the Iowa
legislature has defined what constitutes “any amount of controlled substance” as
used in Iowa Code section 321J.2(1)(c), its definition controls. See Palmer, 554
N.W.2d at 865; citing Hneriksen v. Younglove Constr., 540 N.W.2d 254, 259
(Iowa 1995) (where legislature has defined a term, the court cannot apply a
definition it finds more to its liking).
As a result of the legislature’s definition, before an officer may invoke
Implied Consent in a controlled substance case, he/she must have reasonable
grounds/probable cause to believe that the minimum levels of controlled
substances are present in the individual’s system. Such a rule makes sense. The
purpose of Iowa Code section 321J.2 is to outlaw individuals from driving “while
under the influence of alcohol or a drug.” (emphasis added) See State v. Tague,
15
676 N.W.2d 197, 201 (Iowa 2004) citing T & K Roofing Co. v. Iowa Dep’t of
Educ., 593 N.W.2d 159, 163 (Iowa 1999) (Stating although the title of a statute
cannot limit the plain meaning of the text, it can be considered in determining
legislative intent). The key is being under the influence. Numerous scientific tests
were conducted prior to adopting the .08 standard for blood-alcohol levels. They
found that blood-alcohol levels of .08 or greater are correlated to an individual
being under the influence of alcohol and for that reason the legislature adopted the
.08 standard set forth in 321J.2(1)(b). See Final Report, Validation of Standardized
Field Sobriety Tests at BAC’s below .10 percent. The same goes for the
“detectable levels” of controlled substances. See Mandatory Guidelines for
Federal Workplace Drug Testing Programs, 59 FR 29908; and Revision to the
Mandatory Guidelines, 62 FR 51118. The “detectable levels” of controlled
substances listed in Iowa Administrative Code section 661-7.9, correlate to an
individual being under the influence of those controlled substances. The
overriding purpose behind 321J.2 is to prevent individuals whose physical and
mental condition is so impaired as a result of ingesting alcohol or controlled
substances, that they are unable to safely operate a motor vehicle.
The detection of individuals that are under the influence of narcotics
admittedly requires specialized training. For this reason, this State, at the urging
and under the guidance and regulation of the Federal Government, has developed
specialized training and certification procedures, designed to train officers in
detecting individuals who are under the influence of controlled substances. These
16
officers are commonly referred to as “Drug Recognition Experts” (DRE’s). These
officers are trained to conduct a standardized evaluation of a suspect, which
mandates a 12-step drug recognition protocol that is explained in greater detail in
division IV of this Brief. In a nutshell, this evaluation encompasses interviews of
people with knowledge of defendant’s condition, standardized field sobriety tests,
preliminary medical examinations, and other observations, all aimed at
determining whether the individual is under the influence of controlled substances.
After conducting a thorough, standardized evaluation of a suspect, the “drug
recognition experts” are trained to form an opinion as to whether or not the suspect
is under the influence of a controlled substance. Then and only then does the
officer make a decision one way or the other as to whether or not to invoke
implied consent. If he concludes that the individual is likely under the influence
of a controlled substance, implied consent is invoked and a blood test is requested.
Thus, based upon the officer’s trained examination of the suspect, he/she is able to
conclude that there is a “clear indication that in fact such evidence will be found”
as opposed to the impermissible “mere chance that desired evidence might be
obtained” prior to intruding into the individual’s body. Schmerber, 554 N.W.2d at
769-770.
In the instant case, Deputy Hake does not rely on the results of his drug
recognition evaluation to support his invocation of Implied Consent. Nor could
he. His conclusion pursuant to the evaluation was that he was “unable to form an
opinion based on subjects inability to perform all tests.” Thus we are left with the
17
bare assertion that Mr. Pinegar admitted to using marijuana and meth earlier in the
evening. An admission to consuming controlled substances does not mean that the
individual was under the influence. Iowa Criminal Jury Instruction 2500.5
provides that a person is under the influence when any of the following are true:
“(1) the persons reason or mental ability has been affected; (2) the person’s
judgment is impaired; (3) the persons emotions are visibly excited; or (4) the
person has, to any extent lost control of bodily actions or motions.” Thus, absent
any evidence supporting a finding of one of the four factors set forth in Iowa
Criminal Jury Instruction 2500.5, there can be no reasonable belief that a suspect
is in violation of Iowa Code section 321J.2. Evidence of consumption is just that,
evidence of consumption. It is not evidence of intoxication. “Our implied consent
law recognizes a line between ‘reasonable grounds to believe a person has been
drinking intoxicating liquids’ and ‘reasonable grounds to believe a person is
intoxicated.’” (emphasis added) Ramsey v. Iowa Department of Transportation,
576 N.W.2d 103, 107 (Iowa 1998) (dissent). As such, Officer Hake did not have
the requisite reasonable grounds/probable cause, to invoke Implied Consent, and
the blood sample obtained from Mr. Pinegar as a result of the illegal invocation of
those procedures must be suppressed.
III.
STATEMENTS ELICITED BY WAY OF CUSTODIAL
INTERROGATIONS AT THE SCENE OF THE ACCIDENT AND
AT IOWA METHODIST MEDICAL CENTER, WERE
OBTAINED FROM DEFENDANT IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS AFFORDED HIM BY THE 5TH
AND 14TH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
18
The Fifth Amendment to the United States Constitution provides in relevant
part, “No person . . . shall be compelled in any criminal case to be a witness
against himself. . . .” U.S. Const. Amend. V. “This right against selfincrimination is incorporated into the Due Process Clause of the Fourteenth
Amendment and thus applies to the States.” State v. Turner, 630 N.W.2d 601, 606
(Iowa 2001); citing Malloy v. Hogan, 378 U.S.1, 6-11 (1964). “In Miranda v.
Arizona, 384 U.S. 436 (1966), the United States Supreme Court stated that a
citizen’s privilege against self-incrimination ‘is fulfilled only when the person is
guaranteed the right to remain silent unless he chooses to speak in the unfettered
exercise of his own will.’” Id. citing Miranda, 384 U.S. at 460. “The Court
further noted that because of the ‘compulsion inherent in custodial surroundings,
no statement obtained from a defendant can truly be the product of his free
choice,’ unless adequate protective measures are employed.” Id. Thus, before an
individual who is in custody can be subjected to any interrogation, he must be
advised of his constitutional rights to remain silent and to have appointed counsel
present prior to any questioning. Id. Even voluntary statements taken in violation
of Miranda must be excluded from the prosecution’s case-in-chief. State v. Davis,
446 N.W.2d 785, 788 (Iowa 1989). “On the other hand, any use in a criminal trial
of an involuntary statement is a denial of due process requiring automatic
reversal.” (emphasis added) Id.
19
The requirements of Miranda are not triggered “unless there is both custody
and interrogation.” Id. In State v. Kyseth, the Iowa Supreme Court adopted the
Miranda Court’s definition of custodial interrogation as the ‘questioning initiated
by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom in any way.” (emphasis added) Id. This is an
objective test. “The only relevant inquiry is how a reasonable man in the suspect’s
position would have understood his situation.” Turner, 630 N.W.2d at 607. “All
of the circumstances surrounding the interrogation are examined.” Id. “The State
bears the heavy burden to establish the admissibility of statements made by an
individual while in custody.” Id. at 609.
A. The incriminating statements obtained by Deputy Bollman at the scene
of the accident were in violation of Mr. Pinegar’s constitutional rights
afforded him by the 5th and 14th Amendments of the United States
Constitution.
When the Court reviews all of the circumstances surrounding the
interrogation of Mr. Pinegar at the scene of the accident, there is no other
conclusion to be made but that Mr. Pinegar was in custody and his statements
were a product of a police interrogation.
i. Mr. Pinegar was in custody at the accident scene.
According to Deputy Bollman, Mr. Pinegar was taken into custody upon
exiting the vehicle. The Deputies exact words were: “The driver, Mr. Pinegar then
exited the vehicle through the driver’s door and I took him into custody.”
(emphasis added) (Minutes of Testimony, p. 2). While it is likely that Deputy
20
Bollman will retract this statement at the suppression hearing, the facts and
circumstances immediately following the collision establish that Mr. Pinegar was
in custody and/or that he was “deprived of his freedom in any way” at the time the
Deputy questioned him. According to Officer Hake, the time of arrest was 23:08
(11:08 p.m.).
At approximately 23:05:14, Deputy Bollman approached the vehicle with is
gun drawn; yelled “don’t move”; and ordered Mr. Pinegar to “get on the ground.”
He then handcuffed Mr. Pinegar and brought him to the curb and had him sit
down. Mr. Pinegar’s freedom was restrained. A reasonable person in his position
would have understood his position to be custodial. At no time was Mr. Pinegar
informed that he was free to leave or that he was simply being “seized” pending
further investigation.
Mr. Pinegar’s situation was much like that found to be custodial in State v.
Turner, where the Defendant was handcuffed, placed in the back of a unmarked
police car and referred to as being in “custody.” While Mr. Pinegar was not
placed in the back of a police car, it was obvious to him and any reasonable person
in his position that he was in custody. Deputy Bollman indicated to Mr. Pinegar
after a high-speed chase ending in a vehicle collision which resulted in the death
of a passenger, that he “knew” Mr. Pinegar was driving. This, coupled with the
fact that Mr. Pinegar was ordered out of the vehicle at gunpoint, ordered to the
ground, handcuffed and then sat on the curb, clearly indicates that his “freedom
21
was restrained in a significant way” and he was in custody at the time of
questioning.
ii.
The incriminating statements were obtained as a result of an
interrogation.
“The term ‘interrogation’ under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police that the
police should know are reasonably likely to elicit an incriminating response from
the suspect.” State v. Peterson, 663 N.W.2d 417, 424 (Iowa 2003) citing Miranda,
384 U.S. at 300-01. “The ‘reasonably likely to elicit an incriminating response
from the suspect’ language focuses primarily upon the perceptions of the suspect,
rather than the intent of the police.” Id. at 425. “A practice that the police should
know is reasonably likely to evoke an incriminating response from a suspect thus
amounts to interrogation.” Id.
Mr. Pinegar was interrogated by Deputy Bollman and the unidentified
officer that asked him whether or not he had been drinking or had been doing
drugs. The onboard video camera captures Deputy Bollman repeatedly
interrogating Mr. Pinegar as to whether or not he was driving the car. At
23:06:40, Deputy Bollman states “you were driving, who was driving?” Mr.
Pinegar responds that Ms. Sayles was driving to which the Deputy responded “it
couldn’t have been her.” At 23:08:52, Deputy Bollman exclaims “you had to be
driving” to which Mr. Pinegar again denies that he was driving. Finally at
23:10:20, Deputy Bollman informs another officer directly in front of, and in the
22
direction of Mr. Pinegar, that he concluded that Mr. Pinegar was the driver.
Deputy Bollman specifically states in the direction of, and directed to Mr. Pinegar:
“he was driving but he does not want to admit it.” In response to that accusation,
Mr. Pinegar admits to being the driver of the vehicle. At 23:12:00 another
unidentified officer asks Mr. Pinegar if he had been drinking, to which he replied
no; and had he been using drugs, to which he replied yes.
The majority of the questions were direct and as such, there can be no
argument that they did not constitute an interrogation. The State will likely
contend that the admission by Mr. Pinegar that he was the driver was not in
response to questioning. While it was not in response to a direct question, Deputy
Bollman made accusatory comments towards Mr. Pinegar that he should have
known and did know were reasonably likely to elicit an incriminating response.
As such, his actions constituted “interrogation” within the meaning of Miranda.
Id.
At no time, while at the accident scene, was Mr. Pinegar ever advised of his
constitutional rights as required by Miranda. He was taken into custody and
interrogated by the police. As such, any and all statements obtained from Mr.
Pinegar at the accident scene, must be suppressed as they were obtained in
violation of Mr. Pinegar’s constitutional rights afforded him by the 5th and 14th
Amendments to the United States Constitution.
23
B. The incriminating statements obtained by Officer Hake, in the Iowa
Methodist Medical Center Emergency Room were in violation of Mr.
Pinegar’s constitutional rights afforded him by the 5th and 14th
Amendments of the United States Constitution.
At the time Officer Hake conducted his drug recognition evaluation, Mr.
Pinegar was clearly in custody. As Mr. Pinegar is being tended to by the Des
Moines Fire Department EMT, Deputy Bollman states that he is in custody. Thus,
the question becomes whether or not the State can prove that Mr. Pinegar’s
statements were made voluntarily. State v. Reid, 394 N.W.2d 399, 402 (Iowa
1986). “Where the State is unable to sustain its burden, the defendant’s
inculpatory statements and confession must be suppressed and may not be
admitted into evidence.” Id. “The test for voluntariness of an inculpatory
statement or confession is ‘whether the defendant’s will was overborne by the
police officers,’ considering ‘the totality of the circumstances.’” Id. Factors
relevant to this assessment include: “The defendant’s knowledge and waiver of his
Miranda rights; the defendant’s age, experience, prior record, level of education
and intelligence; the length of time defendant is detained and interrogated;
whether physical punishment was used, including the deprivation of food or sleep;
defendant’s ability to understand the questions; the defendant’s physical and
emotional conduction and his reaction to the interrogation; whether any deceit or
improper promises were used in gaining the admissions; and any weakness the
defendant may possess.” Id.
24
i. The State is unable to meet its burden of proving that Mr. Pinegar
knowingly and intelligently waived his rights.
As stated previously, even voluntary statements taken in violation of
Miranda must be excluded from the prosecution’s case-in-chief. State v. Davis,
446 N.W.2d 785, 788 (Iowa 1989). “Only after the Miranda warnings regarding
the accused’s rights have been given and an opportunity throughout the
interrogation has been afforded the accused to exercise these rights, can the
accused knowingly and intelligently waive the rights and answer questions.”
Peterson, 663 N.W.2d at 424. It is the State’s heavy burden to establish the
waiver. Id. “Absent the warnings regarding the accused’s rights and a showing by
the prosecution that the defendant knowingly and intelligently waived those rights,
no evidence obtained as a result of interrogation can be used against the
defendant.” Id.
The State will claim that Mr. Pinegar made a knowing and intelligent
waiver of his constitutional rights, as evidenced by his purported initialing of
Officer Hake’s drug recognition evaluation form. Mr. Pinegar vigorously disputes
that he ever made such a waiver. The mere assertion by the State that Mr. Pinegar
was advised of, and waived his constitutional rights against self-incrimination, is
insufficient. The purpose of the 5th Amendment and the Supreme Court’s holding
in Miranda, is to ensure that a defendant is appropriately apprised of his
constitutional rights. For this very reason, the State of Iowa has developed
“Interrogation: Advice of Rights” forms that are routinely provided and signed by
25
defendant’s who are willing to waive their 5th Amendment rights. The purpose of
the “Advice of Rights” form is to provide the Court with unambiguous evidence of
waiver, and ensure that such waiver is knowingly and intelligently given. The
State has within its sole possession, the one piece of evidence that resolves any
and all ambiguity as to whether or not an individual consented. Officer Hake was
in possession of these forms or at least had access to them. He alone had the
ability to provide the Court with objective evidence of Mr. Pinegar’s purported
waiver. Failure to provide this evidence raises the rational inference that such
evidence would be unfavorable to the State’s position of a knowing and intelligent
waiver of Mr. Pinegar’s 5th Amendment rights. “It is a well-established legal
principal that . . . the failure to produce documents or physical evidence relevant to
the proof of an issue in a legal proceeding supports an inference that the evidence
would have been unfavorable to the party responsible for its . . . nonproduction.”
In re Estate of Rutter, 633 N.W.2d 740, 747 (Iowa 2001).
Even if the State establishes that Officer Hake advised Mr. Pinegar of his
Miranda rights prior to questioning him at the hospital; when the Court considers
the relevant factors set forth in Reid, and applies them to the facts the State will
not be unable to meet its heavy burden of proving that Mr. Pinegar’s inculpatory
statements were made voluntarily. As such, all statements obtained by Deputy
Hake at Iowa Methodist Medical Center Emergency Room must be suppressed.
26
IV.
OFFICER HAKE FAILED TO FULLY COMPLY WITH THE
STANDARDIZED 12-STEP DRUG RECOGNITION PROTOCOL
AND THUS, SHOULD NOT BE PERMITTED TO TESTIFY AT
TRIAL AS TO ANY OBSERVATIONS MADE PURSUANT TO
HIS DRUG RECOGNITION EVALUATION.
Officer Hake holds himself out to be a “Drug Recognition Expert.” As a
result of his “expertise”, Officer Hake was called upon to conduct a drug
recognition evaluation of Mr. Pinegar at the hospital. Many of the facts and
circumstances surrounding his “evaluation” of Mr. Pinegar are in dispute.
However, what is uncontroverted, is that Officer Hake did not complete the entire
12-step drug recognition protocol. As a result of that, he was unable to form a
credible opinion as to whether or not Mr. Pinegar was under the influence of a
controlled substance. Officer Hake admits this much in his drug recognition
evaluation form where he states that he was “unable to form an opinion based on
subjects inability to perform all tests.” Despite the Officer’s inability to form a
conclusion as to whether or not Mr. Pinegar was under the influence of a
controlled substance, he still went on to request the blood test. At trial, the State is
also intending to offer his testimony that Mr. Pinegar showed “signs” of being
under the influence of controlled substances, despite the Officer’s inability to form
an opinion.
A. Drug Recognition Expert testimony is inadmissible unless the
standardized 12-step drug recognition protocol is followed.
To date, only a handful of States have been called upon to determine the
admissibility of Drug Recognition Expert (DRE) testimony. In those cases, DRE
27
testimony has only been held to be admissible at trial, upon a showing that the
officer has strictly complied with the standardized 12-Step Drug Recognition
Protocol. See State v. Klawitter, 518 N.W.2d 577 (Min. 1994) (holding DRE
testimony admissible when officer follows 12-step drug recognition protocol); See
also State v. Baity, 991 P.2d 1151 (Wash. 2000) (holding upon appropriate
foundation being laid, the court would allow evidence of the DRE protocol only in
situations where all 12 steps of the protocol have been undertaken).
The National Highway Traffic Safety Administration has developed a
standardized curriculum for training police officers as “Drug Recognition
Experts”. State v. Baity, 991 P.2d 1154. The International Association of Chiefs
of Police (IACP) has now assumed the national oversight of the program and has
become the certifying and regulating body for DRE programs. Id. The IACP has
developed a certification and re-certification process that each “Drug Recognition
Expert” must successfully complete in order to maintain his or her designation.
“Drug Recognition Experts” are trained to determine whether or not a
driver is under the influence of a specific category of drugs other than alcohol. Id.
In order to make this determination DRE’s use a 12-step procedure based on a
variety of observable signs and symptoms that are known to be reliable indicators
of drug impairment. Id. “All DRE’s regardless of the agency, use the same
procedures in the same order, on all drivers.” Id. “In theory, a DRE will not reach
a final decision until the entire evaluation is complete.” Id. The 12-steps of the
protocol are: (1) breath (or blood ) alcohol concentration; (2) interview of the
28
arresting officer; (3) preliminary examination; (4) eye examination; (5) divided
attention tests; (6) vital signs examination; (7) darkroom examination of pupil
size; (8) examination of muscle tone; (9) examination of injection sites; (10)
statements, interrogation; (11) opinion; (12) toxicology analysis.” Id. “A DRE’s
opinion is based not on one element of the test, but on the totality of the
evaluation.” Id. “When in doubt, the DRE must find the driver not under the
influence.” (emphasis added) Id.
According to the Drug Evaluation and Classification Training, “The Drug
Recognition Expert School” (Student Manual), the drug recognition process is
“standardized in that it is conducted in exactly the same way, by every drug
recognition expert, for every suspect.” “A drug recognition expert never leaves
out any step in the examination.” Id. Strict compliance with the standardized and
systematic procedures is required to ensure the court’s acceptance of the officer’s
testimony. Id. Only the systematic, standardized administration of these tests
have been corroborated by scientific studies and accepted by the courts. When
standardized testing is conducted in a manner that departs from established
methods and procedures, the results are inherently unreliable. See State v. Homan,
732 N.E. 952, 955 (Ohio 2000) (holding that in order for results of field sobriety
tests to serve as evidence of probable cause to arrest, the police must have
administered the test in strict compliance with the standardized testing
procedures).
29
Officer Hake did not strictly comply with the systematic and standardized
12-step drug recognition protocol. Strict compliance with the standardized
procedures is a prerequisite for the admissibility of the officer’s observations. See
State v. Klawitter, 518 N.W.2d 577 (Min. 1994); See also State v. Baity, 991 P.2d
1151 (Wash. 2000). It is a foundational requirement for the officer’s trial
testimony. Id. Because Officer Hake did not strictly comply with the appropriate
protocol, his testimony must be excluded in its entirety.
B. The State may not piece-meal Officer Hake’s testimony at trial.
It is uncontroverted that Officer Hake did not complete the entire 12-step
drug recognition protocol in his evaluation of Mr. Pinegar. He states in his report
that he was “unable to form an opinion based on subjects inability to perform all
tests.” As such, according to his training and State v. Baity, the Officer should
have found that Mr. Pinegar was not under the influence at that time. The Officer
ignored his training and proceeded to obtain a blood sample from Mr. Pinegar.
Because Officer Hake is obviously not in a position to offer his opinion as
to whether or not Mr. Pinegar was under the influence of a controlled substance,
the State is still seeking to have him testify as to his observations of Mr. Pinegar
that are “consistent with being under the influence.” The State will attempt to
offer Officer Hake’s observations that “are consistent with use of narcotics.”
These observations include that “William’s systolic blood pressure was way above
the near normal range of 120-140MM/HG at 145/119MM/HG consistent with
CNS stimulant and cannabis use”; “Williams pupils had slow reaction to light,
30
consistent with CNS stimulant use”; and “William’s eyes had lack of convergence,
which is consistent with cannabis use.” The aforementioned testimony would
constitute an impermissible attempt to back-door the officer’s “expert opinion”
testimony. There is no authority to suggest that piece-meal testimony by a DRE
officer is admissible to prove that a defendant was under the influence of
controlled substances. If permitted to testify to the aforementioned observations,
Officer Hake would be in essence saying “Mr. Pinegar exhibited these following
symptoms that are consistent with the use of narcotics,” however, “I have no
opinion as to whether or not Mr. Pinegar was under the influence.” The jury
would give such testimony undue weight and its probative value is substantially
outweighed by the danger of unfair prejudice. Iowa R. Evid. 5.403.
Conclusion
For the reasons set forth previously, the blood sample (including all tests
and test results performed on same) seized from Mr. Pinegar’s person should be
suppressed, as it was obtained in violation of Article 1 section 8 of the Iowa
Constitution and the 4th and 14th Amendments to the United States Constitution.
Any incriminating statements obtained from Mr. Pinegar both at the accident
scene and at Iowa Methodist Medical Center must also be suppressed as they were
obtained in violation of Mr. Pinegar’s constitutional rights afforded him by the 5th
and 14th Amendments of the United States Constitution. Finally, Officer Hake’s
testimony must be excluded in its entirety as he failed to comply with the
systematic standardized 12-step drug recognition protocol.
31
Respectfully Submitted,
BERGER LAW FIRM, P.C.
_________________________________
By: Robert G. Rehkemper, PK#17890
7109 Hickman Rd.
Urbandale, IA 50322
Phone: (515) 288-8888
Fax: (515) 288-8888
E-mail: bobby@bergerandgajdel.com
ATTORNEY FOR DEFENDANT
ORIGINAL FILED
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing instrument was
served upon all parties to the above cause to each of the
attorneys of record herein at their respective addresses
disclosed on the pleadings on _________________, 20______
Copies to:
Hon. Artis Reis
By:
Mr. Michael Hunter
Assistant Polk County Attorney
U.S. Mail
Hand Delivered
Certified Mail
Fax
Overnight Courier
Other:
Signature __________________________________________
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