Recent Supreme Court & Other
Appellate Decisions Impacting
Traffic Court
Judge Neil Edward Axel
District Court of Maryland (retired)
Maryland Highway Safety Judicial Conference
December 2, 2015
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Hypothetical:
Is there RAS to effect traffic stop?
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911 call from named caller that car “ran me off
the road 5 minutes ago” (3:45 p.m.)
Caller described vehicle, tag #, location and
route of travel
13 minutes after dispatch call, vehicle matching
description is located
police follow vehicle for 5 minutes, observing no
erratic driving/infractions
Traffic stop made 18 minutes/19 miles after 911
call
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Navarette v. California
134 S.Ct. 1683 (2014)
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HELD:
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Tip was reliable
Eyewitness knowledge
 Contemporaneous report
 Caller used the 911 system
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Call created reasonable suspicion of drunk
driving
Once officer had RAS, there was no need to
personally observe/verify suspicious driving
3
Rodriguez v. United States
135 S.Ct. 1609 (2015)
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Issue: reasonable duration of a traffic stop
Officer’s legitimate mission before issuing citation:
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check license, registration & insurance
check for outstanding warrants
Once purpose of traffic stop has been addressed – or
reasonably should have been addressed – officer cannot
extend the stop even briefly for unrelated investigative
activities
The critical question is not whether dog sniff occurs
before/after issuance of ticket, but whether it prolongs
the stop
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Searches Incident to Arrest
A Brief Chronology
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Chimel v. California, 395 U.S. 752 (1969)
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warrantless search of entire house incident to arrest
was unreasonable in scope
reach, lunge or grasp
for evidence or protection of officer
Belton v. New York, 453 U.S. 454 (1981)
Arizona v. Gant, 556 U.S. 332 (2009)
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Return to “reach, lunge or grasp” except where:
there are reasonable grounds to believe evidence
relevant to the crime of arrest might be found
5
Taylor v. State
__ Md. App. __ (8/27/15)
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Traffic stop based on:
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After stop
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“estimated” speed of 45 in a 25 mph zone
failure to stop at stop sign on left turn
Minor odor of alcohol
Slurred speech; bloodshot & glassy eyes
Coming from “Point Break Beach Bar”
Failed SFSTs
Arrested for suspicion of DUI
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Taylor v. State (continued)
__ Md. App. __ (8/27/15)
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Search of vehicle:
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2nd officer searches vehicle while Taylor is advised per DR-15
CDS found inside closed center console
1st officer then returns to car and seizes CDS
Search was to “locate any other alcohol, open containers,
anything pertaining to the DUI arrest”
HELD:
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Search of vehicle did not violate 4th amendment rights.
Valid search incident to DUI arrest
Standard: “reasonable suspicion” or “reason to believe” under
Terry v. Ohio
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DUI arrest provides reason to believe there will be containers of
alcohol in the vehicle
7
Riley v. California
134 S.Ct. 2473 (2014)
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Following traffic stop & arrest on a weapons
charge, police seize Riley’s cellphone from his
pants pocket
Held:
 Warrantless search of cell phone’s digital information
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incident to arrest violates 4th amendment
Examination of phone’s physical aspects to ensure
that it will not be used as a weapon is permissible
“cell phones differ in both a quantitative and a
qualitative sense from other object that might be kept
on an arrestee’s person.”
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Post-Riley Maryland Cases
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Spence v. State, 444 Md. 1 (2015); Demby v.
State, 444 Md. 45 (2015)
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Search of digital information on arrestee’s cell phone
incident to arrest violates 4th Amendment
Other 4th Amendment exceptions may apply
Police, however, reasonably relied upon then-binding
precedent → exclusionary rule inapplicable
Sinclair v. State, 444 Md. 16 (2015)
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Officers should have obtained a warrant to retrieve
photos from phone
objection, however, waived since not raised pretrial
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Pyon v. State
222 Md.App. 412 (2015)
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FACTS: Officer dispatched to residential area following
anonymous tip of possible drug activity; partially blocked
front of parked vehicle and immediately asked for license
ISSUE: Is this a lawful Terry-stop, a Ferris-accosting, or
4th amendment violation?
Three tiers of interaction between a citizen and police
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Arrest – 4th amendment implicated
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Investigatory stop – 4th amendment implicated
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Consensual encounter – 4th amendment not implicated
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Pyon v. State
222 Md.App. 412 (2015)
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HELD: actions subjected Pyon to a 4th amendment
seizure without 4th amendment justification
“every action taken . . . indicated that [officer] was
following routine police procedures for . . . a traffic stop.”
Litmus test = whether reasonable person would have felt
free to leave
11
Missouri v. McNeely, 133 S.Ct. 1552 (2013)
Issue presented: “whether the natural dissipation of
alcohol in the bloodstream establishes a per se exigency
that suffices on its own to justify an exception to the
warrant requirement for nonconsensual blood testing in
drunk-driving investigations”
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McNeely’s Arrest
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At 2:08 a.m. McNeely is stopped for speeding and
repeatedly crossing the centerline
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odor of alcohol on his breath
bloodshot eyes, slurred speech, unsteady on feet when exiting car
admits to a “couple of beers”
failed SFSTs.
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Refused PBT, breath test & blood test
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Blood drawn at hospital at 2:35 a.m. over objection
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BAC = 0.154
13
Missouri v. McNeely: The Holding
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Non-consensual blood draw constitutes a
search subject to 4th Amendment scrutiny
Metabolization of alcohol is not per se
exigency
Question of exigency to be decided caseby-case
14
Missouri v. McNeely: The Holding
“The natural dissipation of alcohol in the blood may
support an exigency finding in a specific case, as
it did in Schmerber, but it does not do so
categorically.”
“When officers in drunk-driving investigations can
reasonably obtain a warrant before having a
blood sample drawn without significantly
undermining the efficacy of the search, the Fourth
Amendment mandates that they do so.”
15
Exigent Circumstances
As Exception to Warrant Requirement
When ‘ “the exigencies of the situation”
make the needs of law enforcement so
compelling that [a] warrantless search is
objectively reasonable.’ ”
Kentucky v. King, 563 U.S. 452, 131 S.Ct. 1849 (2011);
Mincey v. Arizona, 437 U.S. 385 (1978)
Ethanol & THC Dissipation in the Body
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Metabolism/Elimination rates:
 relatively constant (0.015%/hr.)
 Faster for experienced drinkers
(0.020%/hour)
Comparison of Cannabinoid Pharmacokinetic Properties in
Occasional and Heavy Users Smoking a Marijuana or
Placebo JointStefan W. Toennes1,*, Johannes G.
Ramaekers2, Eef L. Theunissen2, Manfred R. Moeller3,
and Gerold F. Kauert1
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Exigent Circumstances
Possible Examples
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Officer delayed by need to investigate crash
Officer had to go to hospital to begin DWI investigation
Suspect was being treated for injuries
Alcohol/drug dissipation
Time necessary to obtain warrant
Unavailability of magistrate/judge
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Exigent Circumstances:
Developing Caselaw
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State v. Dahlquist, 752 S.E.2d 665 (NC 2013)
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4-5 hours necessary to obtain search warrant constituted
exigent circumstances to excuse warrant requirement
Police, however, should consider amending procedures to use
technology and best practices to minimize delays in obtaining
warrants
State v. Brennick, 753 S.E.2d 740, (No. CO13-627, NC
2013)(unpublished disposition)
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Exigency existed where closest magistrate was 21 miles away
and officer was concerned about losing access to the defendant
at hospital due to impending surgery for injuries suffered in
accident.
Again, court suggested use of video conferencing to obtain
warrant in the future
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Exigent Circumstances:
Developing Caselaw
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Sutherland v. State, 436 S.W. 3d 28, 2014 WL
1370118 (Tx.App.2014)
 would take 5-7 minutes for magistrate to review
search warrant affidavit;
 magistrate was 2.5 miles from arrest site;
 phlebotomist was located 100 feet from magistrate;
 no collision, no medical emergency, & no need to
take driver to the hospital;
 officer had software to facilitate warrant application
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HELD: no exigency
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Consent Searches As Exceptions to the
4th Amendment
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Consent to search, freely given, is an exception to the
warrant requirement of the 4th amendment.
Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973)
When basis for warrantless search is consent, consent
may be withdrawn any time prior to completion of
search. Burton v. U.S., 657 A.2d 741 (D.C.Ct.App.
1994); U.S. v. Sanders, 424 F.3d 768 (8th Cir. 2005)
21
United States v. Slagle
2015 WL 5897740 (D.Md, 10/6/15)
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Issue: whether McNeely applies to breath tests
Argument:
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Constitutional right not to surrender to the demand
for a breath test
Implied consent law unconstitutionally coercive
Breath test cannot be compelled without a warrant
Held:
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McNeely does not hold one has a constitutional right
to refuse a breath test
Sanctions for breath test refusal are not
unconstitutionally coercive
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Related McNeely Issues & Unanswered Questions
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Are blood test results obtained via search warrant entitled
to statutory presumptions?
Is implied consent sufficient consent to drawing of blood?
Impact on Maryland’s blood draw in case of fatality or life
threatening injury?
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THC dissipation = exigency?
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Can implied consent be withdrawn?
23
MVA v. Deering
438 Md. 611 (2014)
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Administrative proceeding to suspend
license based on BAC ≥ 0.08
Denied pre-test right to consult counsel
Sites right to counsel pre-test based on
due process, not 6th amendment right to
counsel
Driver may withdraw one’s implied
consent – albeit for a price
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When A Non-consensual Blood Draw Is Lawful:
A Review
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With a search warrant
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Without a search warrant
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Consent not required
Exigencies not required
under exigent circumstances; or
by consent
Incident to medical treatment (no 4th
amendment issue)
25
Harding v. State
223 Md.App. 289 (2015)
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Trier of fact may infer guilt from refusal to
submit to chemical test
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Not violative of 5th amendment
“Awareness that one was both drunk and
driving could well provoke consciousness
of guilt.”
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Driving While Suspended
Mens Rea/Knowledge
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Steward v. State, 218 Md.App. 550 (2014)
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Evidence was sufficient without evidence of actual knowledge
Previous suspensions & a failure to notify MVA of address
change for over a year
Held: the jury could reasonable infer defendant was deliberately
avoiding contact with the MVA and was thus 'willfully ignorant' of
the suspension
Related cases
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McCallum v. State, 81 Md.App. 403 (1990), aff'd 321 Md. 451 (1991)
Rice v. State, 136 Md.App. 593 (2001).
Sullivan v. State, 180 Md.App. 35 (2008) aff’d 407 Md. 493, 966
A.2d 919 (2009).
White v. State, 217 Md.App. 709 (2014)
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Questions? Comments?
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