                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0938

                                    State of Minnesota,
                                         Appellant,

                                            vs.

                                    Debra Lee Fawcett,
                                       Respondent.

                                 Filed January 11, 2016
                                 Reversed and remanded
                                      Willis, Judge

                               Anoka County District Court
                                File No. 02-CR-14-6757

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for appellant)

Mark D. Nyvold, Fridley, Minnesota (for respondent)

         Considered and decided by Stauber, Presiding Judge; Kirk, Judge; and Willis,

Judge.

                                     SYLLABUS

         When a blood sample is lawfully obtained, a chemical analysis of the sample that

does not offend standards of reasonableness is not a distinct Fourth Amendment event

requiring a warrant.




 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                                      OPINION

WILLIS, Judge

         The state appeals from the district court’s pretrial order suppressing blood-test

results in the prosecution of respondent Debra Lee Fawcett for criminal vehicular

operation. We conclude that the district court erred by holding that Fawcett retained

privacy interests in her blood after it was lawfully obtained under a search warrant.

Accordingly, no additional warrant was required to justify the chemical analysis of her

blood. Therefore, we reverse and remand.

                                          FACTS

         On May 24, 2014, at approximately 5:08 p.m., Blaine Police Officer Matzke was

dispatched to a two-vehicle accident. Officer Matzke observed that the driver of a vehicle

with heavy damage was bleeding and obviously injured. The driver told Officer Matzke

that she was driving through an intersection when she “t-boned” a vehicle that ran a red

light.

         Blaine Police Officer Hawley was also dispatched to the accident. Officer Hawley

spoke with the driver of the second vehicle and identified her as respondent Debra Lee

Fawcett. Fawcett was uncooperative with Officer Hawley’s attempts to assess her possible

injuries and kept asking to call her daughter, who it was later determined had recently died.

Fawcett stated that she had been at a car lot with her daughter but could not identify where

the car lot was. When Officer Hawley asked Fawcett where she had been going, Fawcett

repeatedly stated only that she wanted to call her daughter.




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      Officer Hawley believed that she smelled the odor of an alcoholic beverage coming

from Fawcett. Officer Matzke believed that he smelled a hint of an alcoholic beverage

emanating from Fawcett’s vehicle. Officer Matzke asked Fawcett if she had come from

the VFW club nearby and how many drinks she had earlier. Fawcett stated that she had

not come from the VFW but that she had had two or three beers. While conversing with

her, Officer Matzke believed that he detected the odor of an alcoholic beverage on

Fawcett’s breath.

      Officer Matzke contacted Blaine Police Detective Johann to discuss bringing

criminal-vehicular-operation charges against Fawcett. Detective Johann directed Officer

Matzke to read Fawcett the implied-consent advisory and indicated that in the meantime,

he would seek a search warrant for the blood draw. At 5:29 p.m., Officer Matzke read the

implied-consent advisory to Fawcett, who had been loaded into an ambulance. Officer

Matzke informed Fawcett that Minnesota law required her to take a test to determine if she

was under the influence of alcohol, but he did not read the portion of the advisory about

testing to determine if she was under the influence of a controlled substance. Officer

Matzke then read, “Because I also have probable cause to believe you have violated the

criminal vehicular homicide or injury laws, a test will be taken with or without your

consent.”

      Fawcett told Officer Matzke that she wanted to contact an attorney. At the hospital,

Officer Matzke made a phone available to Fawcett. Fawcett was unable to reach her

attorney and said that she was finished using the phone. At approximately 6:27 p.m.,




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Fawcett agreed to submit to a blood test. Officer Matzke waited to request a blood draw

by medical personnel until Detective Johann could obtain a search warrant.

       In his application for a search warrant and supporting affidavit, Detective Johann

stated the following facts: There had been a motor-vehicle crash and one or more persons

suffered bodily harm as a result of the crash. Officers identified Fawcett as the driver of

one of the vehicles and stated that she admitted that she had two or three drinks “just prior

to” the crash. Fawcett smelled of an alcoholic beverage. Officers at the scene believed

that Fawcett had been drinking. Detective Johann applied for the warrant on the grounds

that Fawcett’s blood sample “constitutes evidence which tends to show a crime has been

committed, or tends to show that a particular person has committed a crime.” He also

stated that he sought a blood sample “as evidence of the crime of criminal vehicular

operation/homicide.”

       The search warrant was granted and authorized a blood sample to be taken from

Fawcett and forwarded “to an approved lab for testing.” The search warrant states that the

affidavit and application were “incorporated by reference into this search warrant.” It also

states that Fawcett’s blood sample “constitutes evidence which tends to show a crime has

been committed, or tends to show that a particular person has committed a crime.” Finally,

the search warrant states that “due to the dissipation of alcohol/drugs in the human body

this warrant may be served at anytime during the day or night.”

       Detective Johann arrived at the hospital at approximately 6:45 p.m. with the search

warrant authorizing a blood draw. Fawcett requested a breath test. Officer Matzke

administered a preliminary breath test and the result was a reading of 0.00. Fawcett denied


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to Detective Johann that she was intoxicated, and Detective Johann did not personally

observe any signs of impairment. Nevertheless, a hospital employee then took a sample of

Fawcett’s blood. Following the blood draw, Fawcett told the officers that she was upset

and depressed about the death of her daughter three months earlier. Fawcett also stated

that she was on Lorazepam and Wellbutrin. The officers gave Fawcett a copy of the

warrant.

         Detective Johann received a Bureau of Criminal Apprehension (BCA) report on

June 24, 2014, indicating that Fawcett’s blood contained no alcohol and that additional

toxicology reports would follow. Detective Johann received a second BCA report on

September 9, 2014, indicating the presence in Fawcett’s blood at the time of the accident

of a metabolite of tetrahydrocannabinol (THC) and Alprazolam, both of which are

controlled substances under Minnesota law. See Minn. Stat. § 152.02, subd. 2(h), subd.

5(c)(2) (2014). A subsequent investigation into Fawcett’s prescription history revealed a

valid prescription for Alprazolam.

         The state charged Fawcett with criminal vehicular operation, in violation of Minn.

Stat. § 609.21, subd. 1(2)(ii) (2012).1 The complaint indicated that although Fawcett had

a valid prescription for Alprazolam at the time of the crash, “the terms of the . . .

prescription were violated when she consumed THC.” Fawcett moved the district court to

suppress all evidence of the presence of drugs in the blood sample. The district court

conducted a contested omnibus hearing on January 29, 2015. No testimony was presented



1
    Renumbered as Minn. Stat. § 609.2113, effective August 1, 2014.

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at the hearing. The state submitted police reports as an exhibit and Fawcett stipulated that

the reports were factually accurate. The district court granted Fawcett’s motion to suppress

the evidence, finding that the blood sample was lawfully obtained under the search warrant

and that testing of the blood sample for alcohol was lawful but that the subsequent testing

of the blood sample for the presence of drugs was unlawful. This pretrial appeal follows.

                                           ISSUE

       Did the district court err by concluding that the search warrant authorizing a blood

draw did not support testing of the blood sample for the presence of controlled substances?

                                        ANALYSIS

       Because this is a pretrial appeal by the state, we must first determine whether the

suppression of the controlled-substance test results will have a critical impact on the state’s

case. State v. Stavish, 868 N.W.2d 670, 674 (Minn. 2015). A pretrial order may be

appealed only when the state shows “the district court’s alleged error, unless reversed, will

have a critical impact on the outcome of the trial.” Minn. R. Crim. P. 28.04, subd. 2(b).

The parties agree, as do we, that the suppression of evidence will have a critical impact on

the outcome of the trial.

       “When reviewing a district court’s pretrial order on a motion to suppress evidence,

we review the district court’s factual findings under a clearly erroneous standard and the

district court’s legal determinations de novo.” State v. Gauster, 752 N.W.2d 496, 502

(Minn. 2008) (quotation omitted). “We may independently review facts that are not in

dispute, and determine, as a matter of law, whether the evidence need be suppressed.” Id.

(quotation omitted). Notably, Fawcett does not challenge the legality of the blood draw or


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the legality of chemical analysis of the blood to determine her alcohol concentration but

argued only that the chemical analysis of her blood for controlled substances was

unlawful.2 The state argues that, regardless of the scope of the search warrant in this case,

once the state has lawfully obtained a person’s blood sample for the purpose of chemical

analysis, the person has lost any legitimate expectation of privacy in any test results from

that sample. This is a matter of first impression for this court.

       The Fourth Amendment to the United States Constitution 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. amend. IV; see also Minn. Const. art. I, § 10. An

individual may invoke the Fourth Amendment by showing “that he personally has an

expectation of privacy in the place searched, and that his expectation is reasonable.”

Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 472 (1998). “The overriding function

of the Fourth Amendment is to protect personal privacy and dignity against unwarranted

intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834

(1966).

       There is no shortage of legal analysis concerning compelled blood draws. See, e.g.,

Missouri v. McNeely, 133 S. Ct. 1552 (2013); State v. Stavish, 868 N.W.2d 670 (Minn.

2015); State v. Trahan, 870 N.W.2d 396 (Minn. App. 2015), review granted (Minn. Nov.

25, 2015). But there is no binding authority of which we are aware considering whether




2
  The issue of whether Fawcett consented to the blood draw was not argued or briefed by
the parties.

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the chemical analysis of blood is a Fourth Amendment event distinct from the blood draw

itself.

          The district court focused its analysis primarily on whether the warrant was

sufficiently particular to authorize the testing of Fawcett’s blood for drugs in addition to

alcohol. The district court briefly considered the state’s argument about the loss of an

expectation of privacy. The state relied on Harrison v. Comm’r of Pub. Safety, 781 N.W.2d

918 (Minn. App. 2010), in its argument to the district court and again relies on Harrison

here. Harrison was arrested twice for driving while impaired and twice consented to a

blood test to determine his alcohol concentration. Harrison, 781 N.W.2d at 919. On

appeal, Harrison did not contend that the blood samples were unlawfully seized but argued

that a warrant was required for subsequent testing of his blood samples for alcohol

concentration. Id. This court concluded that

                when the state has lawfully obtained a sample of a person’s
                blood under the implied-consent law, specifically for the
                purpose of determining alcohol concentration, the person has
                lost any legitimate expectation of privacy in the alcohol
                concentration derived from analysis of the sample. . . . Absent
                such a privacy interest, any testing of the blood sample for its
                alcohol concentration is not a search that implicates
                constitutional protection, and Harrison’s assertion that his
                constitutional rights were violated by the warrantless testing of
                his blood sample is without merit.

Id. at 921. The district court limited its discussion of the privacy rights issue to an analysis

of Harrison and concluded that Harrison was not persuasive because its holding was

limited to blood samples obtained under the suspicion of alcohol use and obtained only for

the purpose of alcohol testing. While Harrison is persuasive, it is not binding on this issue



                                               8
because the court there relied on the authority of the implied-consent law for the search.

Id. Further, Fawcett does not contend that the testing of her blood sample for alcohol was

unlawful but argues only that the subsequent testing of her blood sample for controlled

substances was unlawful.

       In Schmerber, the United States Supreme Court recognized that the administration

of a blood test incident to a lawful arrest constituted a search but held that the search could

be conducted without a warrant due to exigent circumstances. 384 U.S. at 770-71, 86 S. Ct.

at 1835-36. The Court distinguished intrusions into the human body from other types of

property for Fourth Amendment purposes, stating that the inquiry regarding intrusions into

the human body is a two-fold analysis: (1) whether the police were justified in requiring

the blood test; and (2) whether the “means and procedures” employed in taking the blood

were reasonable under the Fourth Amendment. Id. at 768, 86 S. Ct. at 1834. The Court

treated the seizure and separate search of the blood as a single event for Fourth Amendment

purposes. Id. Under Schmerber, any chemical analysis of a lawfully obtained blood

sample need only be reasonable.

       In Skinner v. Ry. Labor Execs.’ Ass’n, the Supreme Court considered the warrantless

blood testing of railroad employees involved in certain train accidents. 489 U.S. 602,

606-34, 109 S. Ct. 1402, 1407-22 (1989). The Supreme Court noted that it is well

established that “a ‘compelled intrusio[n] into the body for blood to be analyzed for alcohol

content’” is a search. Id. at 616, 109 S. Ct. at 1412 (quoting and citing Schmerber, 384

U.S. at 767-68, 86 S. Ct. at 1833-34). The Supreme Court further discussed obtaining

evidence from a person’s body:


                                              9
              In light of our society’s concern for the security of one’s person
              . . . it is obvious that this physical intrusion, penetrating
              beneath the skin, infringes an expectation of privacy that
              society is prepared to recognize as reasonable. The ensuing
              chemical analysis of the sample to obtain physiological data is
              a further invasion of the tested employee’s privacy interests.

Id. at 616, 109 S. Ct. at 1413 (emphasis added) (citing Terry v. Ohio, 392 U.S. 1, 9, 88

S. Ct. 1868, 1873 (1968)). The Court’s “further invasion” language arguably could compel

a conclusion that a subsequent chemical analysis of blood is a distinct Fourth Amendment

event. But viewing the language in the context of the entire opinion, the language is

dictum. The “further invasion” language concerned testing for medical facts about a person

unrelated to the government’s investigation for alcohol or drugs. Id. at 616-17, 109 S. Ct.

at 1413. Importantly, the Court did not apply this principle to the legal issue under

consideration in Skinner because the case involved testing only for alcohol and drugs and

not testing for medical facts. Id. The Court concluded in Skinner that no warrant was

required for blood or urine testing because such testing was justified by the government’s

special need to regulate the conduct of railroad employees to ensure safety by “prevent[ing]

accidents and causalities in railroad operations that [may] result from impairment of

employees by alcohol or drugs.” Id. at 620-21, 109 S. Ct. at 1415 (quoting 49 C.F.R.

§ 219.1(a) (1987)). The Court’s legal conclusions regarding alcohol and drug testing of

railroad employees to ensure railroad safety have no bearing on the issue presented in this

case.

        Courts in other jurisdictions have similarly concluded that Schmerber compels the

conclusion that the subsequent chemical analysis of a lawfully obtained blood sample has



                                             10
no independent Fourth Amendment significance. In United States v. Snyder, 852 F.2d 471

(9th Cir. 1988), the Ninth Circuit Court of Appeals stated that finding a separate Fourth

Amendment event in a chemical analysis “divide[s] [the] arrest, and the subsequent

extraction and testing of [the] blood, into too many separate incidents.” Snyder, 852 F.2d

at 473. The court there concluded that because Schmerber viewed the seizure and chemical

analysis of the blood as a single Fourth Amendment event, it too must do so. Id. at 473-

74. Other courts, citing but not relying on Schmerber, nonetheless reached the same

conclusion. In People v. King, 663 N.Y.S.2d 610 (N.Y. App. Div. 1997), a New York

court held that “[p]rivacy concerns are no longer relevant once the sample has already

lawfully been removed from the body, and the scientific analysis of a sample does not

involve any further search.” King, 663 N.Y.S.2d at 614. Similarly, in State v. Barkley,

551 S.E.2d 131 (N.C. App. 2001), the North Carolina Court of Appeals held that “[o]nce

the blood was lawfully drawn from [appellant’s] body, he no longer had a possessory

interest in that blood.” Barkley, 551 S.E.2d at 135; see also State v. Hauge, 79 P.3d 131

(Haw. 2003); State v. Sanders, Nos. 93-2284-CR, 93-2286-CR, 1994 WL 481723 at *5

(Wis. Ct. App. Sept. 8, 1994) (“We agree with the trial court that, once the police came

into lawful possession of the blood samples, Sanders lost any expectation of privacy he

may have had in them, at least insofar as testing for intoxicants—whether alcohol or drug-

related—is concerned.”).3




3
    We cite Sanders, an unpublished case, only for its persuasive value.

                                              11
       Once a blood sample has been lawfully removed from a person’s body, a person

loses an expectation of privacy in the blood sample, and a subsequent chemical analysis of

the blood sample is, therefore, not a distinct Fourth Amendment event. The district court

considered that such a rule necessarily means that a person’s blood could “thereafter be

tested without a warrant for any purpose at any time, such as future drug testing or DNA

comparisons.” Although such circumstances are not before us, we note that Schmerber

dictates that a standard of reasonableness controls and that an unnecessary invasion of

privacy interests would most certainly raise concerns of reasonableness. See Schmerber,

384 U.S. at 768, 86 S. Ct. at 1834; see also Sanders, 1994 WL 481723 at *5. We conclude

that in this case the test for controlled substances does not raise concerns of reasonableness.

       Because we conclude that the chemical analysis of a lawfully obtained blood sample

is not a distinct Fourth Amendment event requiring a warrant, we need not consider

whether the search warrant in this case was sufficiently particular or whether exigent

circumstances justified a warrantless chemical analysis of Fawcett’s blood. If the state

lawfully obtains a blood sample for the purpose of chemical analysis, then a chemical

analysis of the sample that does not offend standards of reasonableness is not a separate

search requiring a warrant. See State v. McMurray, 860 N.W.2d 686, 691 (Minn. 2015)

(citing Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 516 (1967) (Harlan, J.,

concurring)) (stating that a person must have a reasonable expectation of privacy in the

area or item searched in order to invoke Fourth Amendment protections).




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                                    DECISION

      The district court erred by concluding that Fawcett retained privacy interests in the

contents of her lawfully obtained blood sample and by suppressing the evidence of the

chemical contents of Fawcett’s blood. We therefore reverse the district court’s order and

remand for further proceedings consistent with this opinion.

      Reversed and remanded.




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