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Title: Warrantless Blood Draw Stopped by Utah Nurse Was Legal in Another Reality (The facts and the law are on Alex Wubbels' side.)
Source:
Reason
URL Source: https://reason.com/blog/2017/09/06/ ... s-nurse-who-stopped-warrantles
Published: Sep 6, 2017
Author: Jacob Sullum
Post Date: 2017-09-07 07:01:56 by Deckard
Keywords: None
Views: 13209
Comments: 85
Alex Wubbels, the Salt Lake City nurse who was arrested on video after she refused to let a cop draw blood from an unconscious patient without consent or a warrant, has been widely praised for taking a stand against unconstitutional invasions of privacy. Her admirers do not include Gregg Re, a lawyer who argues in a recent Daily Caller piece, provocatively headlined "Arrested Utah Nurse Had It Coming," that "Wubbels was likely legally wrong under federal law." But Re cannot back up that contrarian claim without resorting to hypotheticals that do not bear any resemblance to this case. Suppose "your neighbor bursts through your front door with a pile of drugs in his hands," Re says. The neighbor is trailed by cops who demand entry as he flushes the drugs down your toilet. If you refuse to let the cops in, Re says, they would be justified in entering anyway and might even arrest you if you tried to interfere. The point, he says, is that "police simply do not need a warrant if exigent circumstances justify an urgent search and seizure of evidence." That scenario is a red herring, because Re never explains how Wubbels resembles the drug dealer's uncooperative neighbor. In particular, he fails to describe the exigent circumstances that supposedly justified Det. Jeff Payne's demand for her patient's blood, relying unstead on inapplicable generalities. "The imminent loss of blood evidence, which would be useful in a drunk-driving case, qualifies as a potentially exigent circumstance," Re writes. Potentially, yes. Necessarily, no. In the 2013 case Missouri v. McNeely, the Supreme Court said "the natural dissipation of blood alcohol" does not automatically provide the "exigent circumstances" that would justify a nonconsensual, warrantless blood draw in a drunk driving case. "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," the Court said. "While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case...it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." Re suggests the totality of the circumstances in the Utah case might have justified Payne's attempt to draw blood from William Gray, a truck driver who was critically injured in a crash with a vehicle driven by a man who was fleeing police. But as Scott Greenfield notes, "there was no attempt to obtain a warrant for the blood draw or reason why a warrant could not be obtained within a time frame sufficient to preserve the evidence." What's more, Gray was not a suspect in a drunk driving case; he was the victim of the other driver, who was killed in the crash. That fact, Re concedes, "raises questions as to whether it was legally reasonable for the police to obtain his blood sample if he was, in fact, a victim not suspected of any crime." Payne reportedly wanted Gray's blood to help show that he bore no responsibility for the collision. That goal does not qualify as probable cause for a search and seizure, which requires a "fair probability" that evidence of a crime will be discovered. In short, although probable cause and exigent circumstances can justify a nonconsensual, warrantless blood draw, there is no evidence that either existed in this case. Presumably that's why, although Payne handcuffed Wubbels while accusing her of interfering with his investigation, no charges were filed against the nurse. It is also why Payne, who is on administrative leave while his department conducts an investigation of his behavior, could face criminal charges instead. Re aims to throw cold water on the "near-universal outrage" provoked by Wubbels' arrrest and correct "reams of inaccurate reporting on the incident." Instead he muddies the issue by arguing that Payne's actions could have been legal if the facts were different. 
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Begin Trace Mode for Comment # 28.
#1. To: Deckard (#0)
(Edited)
Re aims to draw attention to himself, which he did. As far as the issue itself goes, he threw gasoline on a fire that just made the whole case that much worse for the cop and his supervisor. Legal sophistry is not going to save Payne or his supervisor, it is just going to make those who want to get him willing to engage in their own blunt force legal sophistry, and power is decided not by right, but by politicians - who answer to voters, not cops. Re's article, if it does anything at all, will merely succeed in enhancing the punishment of the cop. When you have to resort to storytelling to argue for somebody's egregious behavior - when you have to essentially make up an entirely new case and set of facts, because the real case and facts are so bad for you - you're better off throwing yourself on the mercy of the court. Payne and his supervisor are going to have to rely on mercy, because the law is going to nail them both to a cross. If they stand on law, they die: they broke it, and the nurse upheld it. Every judge will see it that way. Every politician will see it that way. The cops don't have a pot to piss in. The police chief KNOWS THAT, which is why he is not standing with his officers. They are to be cut away and thrown to the public to be torn apart, in order to protect the department. This wasn't some black thug who was abused on camera. It was an elite white professional in medicine, which is held in greater trust and higher esteem than cops. The police chief knows that. Payne and his supervisor are going to be broken men, and nobody will have any sympathy for them. They're scapegoats.
The police chief KNOWS THAT, which is why he is not standing with his officers. The chief did try. He only took Payne off blood-draw duty initially. It was only after nurse Wubbels obtained and released the video that Payne and his supervisor (seen in the video talking to Wubbels in the cop car) were suspended. So that blue line held firm for over a month until the public exploded after seeing the video.
But now it's out - because the nurse was angry, self-righteous and knew she was right, and her employer was angry and self-righteous also, and was right. And because the public worries about bully cops when they bully white professionals: THAT is not what the cops exist to do. When they bully blacks and illegals, most people really don't care. But when they start bullying white medical professionals, well, that means that the cops are getting too big for their britches. We all worry about that, and this crystallizes it. So, she brought it forward, and has an economic incentive to do so as well. She's angry, and she can win money in court if she presses it. A white jury will side with her, and a black jury will too. Mr. White won't, but he'll be voir dired off the jury. Now that it's out there, it crystallizes the zeitgeist. The case law is utterly terrible for the cops. Neo-Confederates care about the states- rights issue concerning Utah law. And they are a sliver of the population. Everybody else knows that the Supreme Court is the law of the land, and what they've said is clear and congenial to the attitudes of most people. The cops don't have a pot to piss in. Sure, as long as the cops are able to keep this stuff sub rosa, people don't see, and don't get riled. But they can't stop this nurse, she's got a huge head of steam, she's right, the public is aware and aroused. It's sort of like Pearl Harbor, really, what Payne did here. There was no path back for the Japanese after that: the people were riled. Now, if the police force itself resists, then the hits will keep coming until they have their Appomattox moment. It's so much EASIER for them to claim that Payne was a rogue, unstable ass, publicly crucify him and hang his bloody pelt in the public square as an offering to the public, and then be allowed to return to their usual quiet and secretive ways. That's what they'll do, too. When the only people who are standing up and defending it is a neo-Confederate fascist like Mr. White, they've already lost. Importantly, law enforcement and prosecutors are not even attempting to defend Payne. He's going to the scapegoat, all of the fury will be focused on him. He'll be thrown to the mob, receive political justice and will be a poor and broken man thereafter, a horror at whom people wag their heads. The police will move on. They will not defend this guy, and the unions are smart enough not to destroy themselves trying to stand against an aroused public. It all seems pretty just to me. Bullies should be bullied.
Even if a juror tries to nullify, a hung jury would result in a second trial where it is very unlikely there would be a second juror to nullify. The police can hardly claim ignorance of the law after two big USSC cases. Certainly, the courts don't accept that excuse from anyone else, let alone those who are charged with enforcing the law on the public. It could be that the prosecutors will weasel around, trying to find a way to let these two cops off the hook after the public has moved on. But I think the heat is very high on this one and the local media will follow it closely. So the cops are screwed, I think. I think, much as in any jurisdiction, they will look for ways to let Payne off. But the heat is high and the public will likely remain aroused. The hospital imposing restrictions on cops on the premises (access to emergency rooms, unable to speak to nurses) just ratchets the pressure higher. The judge, the prosecutors, the rest of the cops, all have to wonder how they will be treated the next time they get shot or hurt. Or a family member. So I don't think this one just goes down the memory hole months from now.
Ignorance? They were FOLLOWING state law. Your retort is that those are old laws that haven't been cleaned up yet. Give me a f**king break. "I think, much as in any jurisdiction, they will look for ways to let Payne off." Hah! Let him off what? Being rude? What's he charged with? I hope he sues them for $10 million (plus back pay).
That wasn't my retort. My retort is that the federal law blots out the state law whether or not the state law is repealed. The legislators of Utah can be as stubborn as they will. What the Supreme Court says the law is, is also the law in Utah, and the Utah statutes are voided by the Supreme Court decision, whether Utah chooses to repeal the law on its books or not. Ignorance of the law is no excuse, we are told, by the cops, all the time. It is the Supreme Law of the Land that the Supreme Court has the final decision as to what the Constitution means, and the Constitution is supreme over all federal and state statutes within its purview. Drawing blood is squarely within the Constitutional purview, so by writing their decision, the Supreme Court legally erased the Utah statute, regardless of what the Utah legislators do. The Law of the Land - which is The Law - is that the police CANNOT take a blood sample without consent or a warrant. Period. The fine distinctions of the former Utah law are no longer law at all, whether the Utah legislature acts or not, because the Supreme Court has ESTABLISHED the law for Utah and everywhere else by its decision. Everything in state law or local law contrary to that has ALREADY BEEN VOIDED, by the Supreme Court action. That it remains on the statute book is irrelevant. It IS NOT LAW anymore, because the Supreme Court is above that law, and its decisions are the law, not the old law. Too Conservative gives the example of the sodomy laws. If the Utah troopers burst into somebody's house with or without a warrant, and find two consenting adult men boffing each other, if they arrest them for that they have broken the law, because The Law is that they can do that, and that the state cannot punish it. The state has an old, voided law on its books that it is illegal, but the cops break the law if they attempt to enforce that illegal law against the ACTUAL law, which was set in Washington by the Supreme Court. The Supreme Court decision on the matter IS "The Law". The Utah statute is no longer law. It has been voided. Whether we're talking buggery or involuntary blood donations, that is still the case. So when police seek to enforce an illegal law, they commit assault and wrongful imprisonment of people acting lawfully. That then puts the police, and the police force budget, in the hazard for criminal and civil prosecution. Ignorance of the law is no excuse, and the police forces have a duty to make sure that the cops know the law - which, in this case, was not set by Utah but by Washington. Now, one may have a philosophical problem with that, but the police are not entitled to act on their philosophical issues. Under our constitutional system, the Supreme Court is the final arbiter of the Constitution, and the Constitution is the Supreme Law of the land. So the cop leaves the parameters of his duty if he tries to erect a "states rights' political argument as to why he can follow the state statute and ignore the Supreme Court decision. If he goes past theoretical argument into arresting somebody for doing lawful things, he passes over into abuse of authority and should be prosecuted and hammered. No breaks. Ignorance of the law, on the part of the police especially, is absolutely no excuse. The same abusive officers will tell YOU so, and they are also subject to law.
That post wasn't directed at you. "What the Supreme Court says the law is, is also the law in Utah" Maybe. I mean, the defense can certainly bring it up at trial and the judge may or may not agree. But at this stage, all the cop tried to do was draw the blood.
But at this stage, all the cop tried to do was draw the blood. Nope. There's no procedural requirement that the cops be permitted to get what they want, and the defendant can sort it out at trial. The cops don't have the right to take what they have no right to take. The cops had no right at all to arrest that woman. Now THEY'RE the defendants, so THEY can argue at THEIR trials that they DID have the right to do what they did. There's no reason to let the process that the cops would prefer be the one that governs. Rather, the process that holds them accountable seems to be the better one.
#30. To: Vicomte13 (#28)
Other than the current State of Utah law, no. "and the defendant can sort it out at trial." Correct. If it had gone that far. "The cops don't have the right to take what they have no right to take." Sure they do. State law and police procedures said they did. NOW, whether or not that evidence would be admissable is another story. "The cops had no right at all to arrest that woman." You might argue that they shouldn't have, but they did have the power to arrest her for interfering with an investigation, obstruction, and resisting arrest.
He had the power to take the blood under State of Utah law and police department policy. If the law is outdated or police policies are wrong, that's not his fault. The fact that the police department changed their policies after this incident is telling. Yet you still blame the cop. Idiot.
Top • Page Up • Full Thread • Page Down • Bottom/LatestRe aims to throw cold water on the "near-universal outrage" provoked by Wubbels' arrrest and correct "reams of inaccurate reporting on the incident."
#6. To: Vicomte13 (#1)
Every judge will see it that way. Every politician will see it that way. The cops don't have a pot to piss in.
#10. To: Tooconservative (#6)
So that blue line held firm for over a month until the public exploded after seeing the video.
#13. To: Vicomte13 (#10)
Now that it's out there, it crystallizes the zeitgeist. The case law is utterly terrible for the cops. Neo-Confederates care about the states- rights issue concerning Utah law. And they are a sliver of the population. Everybody else knows that the Supreme Court is the law of the land, and what they've said is clear and congenial to the attitudes of most people.
Now, if the police force itself resists, then the hits will keep coming until they have their Appomattox moment. It's so much EASIER for them to claim that Payne was a rogue, unstable ass, publicly crucify him and hang his bloody pelt in the public square as an offering to the public, and then be allowed to return to their usual quiet and secretive ways.
#15. To: Tooconservative (#13)
The police can hardly claim ignorance of the law after two big USSC cases.
#18. To: misterwhite (#15)
hey were FOLLOWING state law. Your retort is that those are old laws that haven't been cleaned up yet. Give me a f**king break.
#20. To: Vicomte13 (#18)
That wasn't my retort.
#28. To: misterwhite (#20)
Maybe. I mean, the defense can certainly bring it up at trial and the judge may or may not agree.
Replies to Comment # 28. There's no procedural requirement that the cops be permitted to get what they want,
#46. To: Vicomte13 (#28)
The cops don't have the right to take what they have no right to take.
End Trace Mode for Comment # 28.
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