Let’s talk a little bit about the Good Faith Exception coming to Tennessee. In a recent opinion, the Supreme Court granted a “limited” GFE, but I’ll leave it to you to determine how “limited” it actually seems. Sharon Lee authored a dissent, and I’ll discuss that in my Part II post.
At its most basic level, Leon Good Faith gives the Government a thumbs-up to use evidence against a defendant that it has procured as a result of a constitutional violation if the police officer acted in “good faith.” Such a concept generally yields a collective eye roll from the defense bar, because, 1) It’s hard to tell anyone that they are a liar or a violator of constitutional rights, and 2) It’s really hard to judges to take a bold stand that a police officer didn’t act in good faith. Because if they didn’t act in good faith, by the process of elimination, they acted in bad faith.
So, in State v. Corrin Reynolds, we’ve got some facts:
Reynolds was involved in single car accident one evening, two of her passengers died. Reynolds, the driver, and another passenger were taken to the hospital. A Highway Trooper determined Reynolds was the driver, and “believing she verbally consented” told staff to perform a blood draw. The Trooper didn’t get a warrant, nor did he read Reynolds the implied consent law telling her that she didn’t have to give blood. Reynolds was badly injured in the accident and remained hospitalized for seven days.
After being indicted with several charges, including two counts of vehicular homicide, Reynolds challenged the blood draw – that her blood draw unconstitutionally taken from her because she neither actually or impliedly consented to the blood draw. The trooper reported to the hospital approximately 30 minutes after getting a page about the accident. “Because the accident resulted in two fatalities, Deputy Strzelecki stated that the blood draws ‘would have been mandatory under our investigation.’” (p. 4 of the opinion.) He found Reynolds “lying on a gurney in the emergency room, waiting to be transported to or from the x-ray department, ‘and she was alert and conscious and was talking to.’” (p. 4.) Reynolds told him everyone in the car was drinking. The trooper smelled alcohol and conducted an HGN test, which she failed. This trooper also testified as an expert – over defense objection- which meant his expert opinion carried greater weight than someone fresh off the street.
In my opinion, here’s the key fact in this case: When Deputy Strzelecki asked the defendant if she would submit to the taking of a blood sample, she responded, “Do whatever you have to do.” Now, what does that mean? If you find that she gave consent, it’s not necessary to go to GFE. End of story. If you find she didn't give consent, you have to question under theory an officer could have drawn her blood.
[Total sidenote, but still, extremely on-point: in what other profession can people really half-perform their job like this and it be okay? Can you imagine if someone made a statement like this and you didn’t clarify what it meant? And how much effort does it take for the officer to say, “well that’s a little unclear, can I draw your blood or not?” BUT HE DIDN’T. He didn’t spend an extra 30 seconds looking for clarification. It makes you wonder if he really wanted to give Reynolds a chance to say, “no, let’s not do that” or “get a warrant.” And, let us not forget, he’s a trooper with accolades and specialized training in DUIs and crashes; he knows EXACTLY HOW IMPORTANT it is to have consent or give that implied consent speech. And that is the ultimate rub of the GFE; because police officers automatically get a Good Faith pass on damn near everything they do.]
Back to the case:
At the hospital, Reynolds was given Versed. “Deputy Strzelecki testified, however, that a “normal dosage, [and] therapeutic level” of the medication “wouldn't show a horizontal gaze nystagmus.” Deputy Strzelecki acknowledged that he was not aware the defendant had received the medication when he administered the HGN test.” It’s unclear how the Deputy knew this what medications would or would not effect an HGN test.*
Reynolds signed an affidavit that she had no recollection of speaking with the trooper. Her medical records indicated some significant injuries: her right pupil was “blown [and] non[-]reactive,” that she reported not being able to see out of her right eye, and that she was “screaming she was deaf” while “holding her hearing aid in [her] hand.” LifeStar records indicated her pupils were equal and reactive, and that she was also administered morphine in addition to the Versed. The trauma nurse noted that Reynolds was deaf and they had to write things down for her.
*It’s unclear if the trooper was asked if a blown, non-reactive pupil might affect someone’s mastery at the HGN test.
The trial court found that “Do what you have to do” was actual, verbal consent. The defense filed for a re-hearing and a psychologist testified that he didn’t think Reynolds could have given knowing consent, based on all the medications she was on. At the re-hearing, the trooper gave testimony that: “... the defendant’s eyes were open and her pupils equal and that her eyes were “tracking normally” when he administered the HGN test as he spoke with her. He reiterated that she had exhibited the six clues of intoxication on that test.”
After re-hearing, the trial court granted the motion to suppress, finding that Reynolds couldn’t have consented, and the trooper lacked the “reasonable grounds” that would have been necessary for an implied consent draw. The CCA affirmed. From what I can tell, the State never argued that Good Faith should apply. Judge Easter, a CCA judge from Williamson County, suggested it in his Opinion for the CCA panel. The Tennessee Supreme Court picked this case as its exemplar for implementing the GFE. (I haven’t read every pleading; this is based on the SC’s discussion of the procedural history.)
The Tennessee SC said this:
“Based on the limited guidance Birchfield provided, the unusual facts* of this case, and our ability to resolve this appeal on another ground, we decline to determine in this appeal whether the implied consent statute satisfies the consent exception to the warrant requirement or whether the implied consent statute violates the federal or state constitution by authorizing warrantless blood draws.”
*Honestly, I don’t think the facts of this case are unusual. They actually strike me as extremely usual (if there can be such a thing). Car accident happens at night, people hurt, police try to figure out who was driving, police smell alcohol, patient was given pain meds and sustained serious injuries, patient makes somewhat ambiguous statement in immediate aftermath of wreck = blood drawn.
To me, this is the scariest part of this opinion -- this is where we give police officers the ability to perform their jobs poorly, and not be held accountable:
“Here, Deputy Strzelecki did not rely primarily on the implied consent law in obtaining the defendant’s blood. Rather, he erroneously believed that the defendant had actually consented to the blood draw, and he viewed the blood draw as mandatory, regardless of the defendant’s consent, because the accident involved fatalities. As a result, he did not advise the defendant of her ability to decline consent to the blood draw or of the consequences of doing so.”
In the my next post, I'll pick up with this finding from the Court.
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