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United States v. Hutchinson

United States District Court, D. Maine

January 17, 2018




         This criminal negligence case arises out of a tragic event at sea off the Maine coast on Saturday, November 1, 2014. Around 1 a.m. that morning, the No Limits put out to sea from Tenants Harbor with its owner/captain, the defendant Christopher Hutchinson, and two crew members, Tyler Sawyer and Thomas Hammond, to pull lobster traps on 11-Mile Ridge. The weather and seas turned very bad, and the No Limits headed back toward port mid-morning. It capsized en route. Hutchinson, although injured, made it to a life raft. The Coast Guard rescued him around 4 p.m. and took him to Maine Medical Center where he was treated for facial contusions and lacerations and hypothermia. The two crew members were lost at sea. Around 9 p.m. that evening in the trauma room of Maine Medical Center, law enforcement drew a blood sample from Hutchinson without obtaining a warrant and under contested circumstances. Now facing federal prosecution for seaman's manslaughter, the defendant Hutchinson has moved to suppress the results of the blood test and any later statements he made to law enforcement that were based upon the test results.[1]

         I conducted an evidentiary hearing on December 18 and 20, 2017. I find the facts that follow, based on the testimony and exhibits.[2] I conclude that Coast Guard regulations do not compel a seaman to submit to a blood draw (although there are negative consequences if he refuses), that the “consent” obtained from the defendant was not voluntary, and that law enforcement did not obtain a warrant, had no basis for believing that exigent circumstances prevented them from doing so, and did not have probable cause for the blood draw. As a result, I Grant in part and Deny in part the motion to suppress.

         Uncontested Facts

         Richard Yazbek, a marine investigator for the United States Coast Guard, was the duty marine investigator for Portland on Saturday November 1, 2014. He had never previously conducted a blood draw and generally asked a seaman's employer to obtain a blood draw when it was needed. But he knew that other investigators had sent mariners to Pen Bay Medical Center in Rockport to have blood drawn there.

         Yazbek was at home in West Bath when he received a phone call from the USCG Sector Northern New England Command Center around 6 or 6:30 p.m. about the accident, informing him that a vessel had sunk, two crew members were missing, and one was being taken to Maine Medical Center in Portland. Yazbek gathered his investigative bag and started driving to Maine Medical Center to investigate. During the drive he spoke by phone to his supervisor Lieutenant Janna Ott. The supervisor told Yazbek he needed to do drug and alcohol testing. Yazbek later told investigator Volk that at the time he believed he had 32 hours to have the drug test done. Def. Ex. 6. He also told investigator Volk that if he had been unable to get the blood drawn Saturday, he would have asked the defendant to go to Pen Bay Medical Center Sunday in Rockport. Id. Yazbek called the Command Center and asked the Command Center to arrange for Coast Guard personnel at the South Portland Coast Guard station who were qualified to do breathalyzer tests to meet him at Maine Medical Center. Yazbek also called Maine Medical Center and spoke to the emergency room doctor who told him that Maine Medical Center would not do a blood draw for a drug test. After trying various law enforcement agencies, Yazbek eventually spoke to a Maine State Police dispatcher who told him a qualified police officer would meet him at the hospital to do the blood draw. Yazbek believed the accident had occurred about 9 hours before he was called. Yazbek also learned that the father of one of the missing crew members asked to have the defendant tested for drugs and alcohol.

         Yazbek arrived at the hospital around 7:30 p.m., about the same time as two USCG uniformed Petty Officers arrived from the South Portland Coast Guard station. The defendant was in a trauma room at Maine Medical Center.

         When Yazbek and the two Coast Guard officers entered the defendant's hospital room, the defendant was wrapped in a “bear hugger” heat blanket. Yazbek told the defendant he was going to do an alcohol breath test, the lead petty officer described the procedure, and the defendant agreed to the test. The test result was negative for alcohol, and the two petty officers left.

         Yazbek then waited for the police officer he believed the Maine State Police was sending to do the blood draw for drug testing. During that time, he was in and out of the hospital room but mostly out. At some point the defendant's mother asked him if the blood test could be delayed because the defendant had had a long day. Yazbek told her that it was required by law and regulation, that there were mandatory time limits, that it was supposed to be done as soon as possible, and that “we have to do this now.” Yazbek was thinking to himself that it might be difficult to find a facility to do a drug test the next day, Sunday, since the defendant was going home to Port Clyde. Yazbek also asked hospital personnel if they could delay discharging the defendant for a short amount of time until the person who would administer the drug test arrived. Hospital personnel treated the defendant's facial lacerations with stitches between 8 and 8:30 p.m. About 15 minutes after Yazbek's request that discharge be delayed, Gorham Police Officer Dean Hannon arrived to perform the blood test with a standard kit that the Maine Department of Health & Human Services provides for police officers to use in the State of Maine. Officer Hannon drew the defendant's blood at 9 p.m., using the I-V apparatus already in the defendant's arm without inserting a new needle. Whether the defendant actually consented to the blood draw is hotly disputed as I describe below. Yazbek believed that the defendant had to submit to the test. Hannon then and later completed certain documents that stated that the defendant had verbally consented to the blood draw, that the blood test was “mandated, ” and that Yazbek witnessed the blood draw. He gave the completed kit to Yazbek. Yazbek delayed an interview of the defendant until the next day because he thought the defendant was in no condition to be interviewed.

         About 15 minutes after the blood draw, Maine Medical Center discharged the defendant.

         In summary, soon after 6 or 6:30 p.m., Yazbek and his supervisor made the decision to have the defendant's blood drawn, knowing only that the No Limits had capsized and that two crew members were missing. Yazbek and Hannon conducted the draw believing that the defendant was required by law to submit to the blood draw. As appears below, the law upon which they were relying did not require the defendant to submit to the test (although it provided negative consequences for failing to do so). The government argues that I should nevertheless not suppress the test results, because the defendant voluntarily consented to the blood draw on the evening of November 1, and that even if he didn't, the blood draw was proper because the Coast Guard had probable cause to believe illegal substances were involved and had no time to seek a warrant permitting the blood draw. The government is entitled to advance those alternate arguments and I consider them carefully. The issues are more difficult than the run-of-the-mill case, however, because the officers were not thinking in terms of probable cause, a warrant, or exigent circumstances, and the assessment is therefore a hypothetical construct. The parties also disagree vehemently over whether I can consider certain information or inferences gathered in the days, weeks, and months after November 1, 2014.

         The blood test ultimately revealed that the defendant had ingested marijuana and oxycodone. Gov't Ex. 29.


         Fourth Amendment Background

         It has been clear since at least 1966 that compulsory blood draws are “intrusions into the human body” subject to the Fourth Amendment's prohibition on unreasonable searches and seizures. Schmerber v. California, 384 U.S. 757, 769-70 (1966). In Schmerber, the Supreme Court stated:

The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions 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.

Id. Even when there is adequate evidence to support a blood draw, a warrant must be obtained first:

Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned. . . . 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. at 770. The Supreme Court reaffirmed these principles as recently as 2016, Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), where it distinguished breath tests from blood tests:

[T]he Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for [blood alcohol concentration] testing is great. We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.

Id. at 2184.[3] If there is a need for a blood test to detect substances other than alcohol, “[n]othing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not.” Id. The imminent destruction of evidence can justify proceeding without a warrant if there is no time to obtain a warrant. Schmerber, 384 U.S. at 770-71. But in 2013, the Court rejected the argument that the natural dissipation of alcohol in human blood categorically creates exigent circumstances that justifies proceeding without a warrant in every case. Missouri v. McNeely, 569 U.S. 141 (2013). Instead, “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id. at 156. I see no reason to apply a different standard when the issue is drugs rather than alcohol.

         “Special Needs

         The government argues that the blood draw here was justified by the government's special need to regulate the fishing industry in the interest of safety. Gov't Opp'n 12 (ECF No. 12). It relies principally on Skinner v. Railway Labor Executives' Association, 489 U.S. 602 (1989). In that case, the Supreme Court upheld against a facial challenge Federal Railroad Administration regulations authorizing “mandatory” warrantless drug and alcohol testing for employees involved in certain train accidents. 489 U.S. at 606, 609, 614, 633. Although searches and seizures are not generally reasonable under the Fourth Amendment unless “accomplished pursuant to a judicial warrant issued upon probable cause, ” the Supreme Court held that the Federal Railroad Administration regulations fit within a “recognized exception[ ] to this rule” that is available “when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'” Id. at 619 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)). In Skinner, the Court “balance[d] the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context.” Id. Among a number of factors important to its decision, the Court emphasized that the railroad industry is highly regulated; that covered employees engage in safety-sensitive tasks; and that employee expectations of privacy are diminished given this pervasive regulation. Id. at 620-627.[4] Because it was resolving a facial challenge, the Court considered only “whether the tests contemplated by the regulations can ever be conducted.” Id. at 632 n.10 (emphasis in original). The tests were prescribed “not to assist in the prosecution of [railroad workers], but rather ‘to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs.'” Id. at 620-21 (citation omitted). The Court “le[ft] for another day the question whether routine use in criminal prosecutions of evidence obtained pursuant to the administrative scheme would give rise to an inference of pretext, or otherwise impugn the administrative nature of the FRA's program.” Id. at 621 n.5.

         The Court described the FRA testing as “mandatory, ” but it used that term in the sense that negative consequences to an employee resulted from refusal to undergo testing, not that an employee could be physically compelled to submit to the test. Id. at 610-11, 615 (noting that “[e]mployees who refuse to provide required . . . samples may not perform covered service for nine months” and that an “employee who refuses to submit to the tests must be withdrawn from covered service”).[5]

         In this case, the government points to numerous regulations to show that commercial fishing, like railroading, is a dangerous, highly regulated industry in which workers have diminished expectations of on-the-job privacy. Gov't Opp'n 7-12. The defendant agrees. The government cites two sets of Coast Guard regulations that call for drug and alcohol testing of marine workers.

         The first, Subchapter F, Part 95 of Title 33 of the Code of Federal Regulations, prescribes restrictions on operating covered vessels under the influence, along with standards for drug and alcohol testing. It authorizes law enforcement officers and marine employers to “direct an individual operating a vessel to undergo a chemical test [for drugs or alcohol] when reasonable cause exists.” 33 C.F.R. § 95.035(a). Reasonable cause exists when, among other things, “[t]he individual was directly involved in the occurrence of a marine casualty as defined in Chapter 61 of Title 46, United States Code.” Id. § 95.035(a)(1).[6] That is the case here. When law enforcement or the marine employer directs an individual “to undergo a chemical test, the individual to be tested must be informed of that fact and directed to undergo a test as soon as practicable.” Id. § 95.035(b).

         The second, Part 4 of C.F.R. Title 46, elaborates the Coast Guard's regulatory authority to investigate serious marine casualties. Subpart 4.06 provides for “Mandatory Chemical Testing Following Serious Marine Incidents Involving Vessels in Commercial Service.”[7] It provides that “[a]ny individual engaged or employed on board a vessel who is determined to be directly involved in [a serious marine incident] must provide a blood, breath, saliva, or urine specimen for chemical testing when directed to do so by the marine employer or a law enforcement officer.” 46 C.F.R. § 4.06-5(a). Marine employers “must ensure” that this drug and alcohol testing is conducted following a serious marine incident. Id. § 4.06-3.

         The Coast Guard regulations call for “mandatory” testing in the sense that Skinner treated the FRA testing regulations as mandatory. Both sets of Coast Guard regulations contemplate that an individual actually may refuse the test, and impose enumerated penalties on those who do refuse. 33 C.F.R. § 95.040 (refusal is admissible in administrative proceedings); 46 C.F.R. § 4.06-5(b), (d) (employer must remove refusing individual from duties affecting safety; refusal is a violation and can result in adverse administrative proceedings and/or a civil fine); see United States v. O'Keefe, No. 03-137, 2004 WL 439897 at *1 (E.D. La. Mar. 8, 2004) (employer-directed urine test “not mandatory, ” but “failure to undergo the test could result in suspension of the Defendants' license to ...

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