Forced Blood Draws & Implied Consent Laws Make a Mockery of the Fourth Amendment

“The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes, that shield has been shattered, leaving our liberty and personal integrity subject to the whim of every cop on the beat, trooper on the highway and jail official.”—Herman Schwartz, The Nation

You think you’ve got rights? Think again.

All of those freedoms we cherish—the ones enshrined in the Constitution, the ones that affirm our right to free speech and assembly, due process, privacy, bodily integrity, the right to not have police seize our property without a warrant, or search and detain us without probable cause—amount to nothing when the government and its agents are allowed to disregard those prohibitions on government overreach at will.

This is the grim reality of life in the American police state.

Our so-called rights have been reduced to technicalities in the face of the government’s ongoing power grabs.

Consider a case before the U.S. Supreme Court (Mitchell vs. Wisconsin) in which Wisconsin police officers read an unconscious man his rights and then proceeded to forcibly and warrantlessly draw his blood while he was still unconscious in order to determine if he could be charged with a DUI.

To sanction this forced blood draw, the cops and the courts have hitched their wagon to state “implied consent” laws (all of the states have them), which suggest that merely driving on a state-owned road implies that a person has consented to police sobriety tests, breathalyzers and blood draws.

More than half of the states (29 states) allow police to do warrantless, forced blood draws on unconscious individuals whom they suspect of driving while intoxicated.

Seven state appeals courts have declared these warrantless blood draws when carried out on unconscious suspects are unconstitutional. Courts in seven other states have found that implied consent laws run afoul of the Fourth Amendment. And yet seven other states (including Wisconsin) have ruled that implied consent laws provide police with a free pass when it comes to the Fourth Amendment and forced blood draws.

With this much division among the state courts, a lot is riding on which way the U.S. Supreme Court rules in Mitchell and whether it allows state legislatures to use implied consent laws as a means of allowing police to bypass the Fourth Amendment’s warrant requirement in relation to forced blood draws and unconscious suspects.

Mind you, this is the third time in as many years that the Supreme Court has taken up the issue of warrantless blood draws.

In 2016, the Court ruled 7-1 in Birchfield v. North Dakota that states may not prosecute suspected drunken drivers for refusing warrantless blood draws when they are arrested. However, the Court also tossed the cops a bone by giving them a green light to require a warrantless breath test incident to arrest. Writing for the majority, Justice Samuel Alito rightly recognized the danger of allowing the government to warrantlessly take possession of—and preserve indefinitely—one’s biological and genetic material.

In 2013, a divided Supreme Court held in Missouri v. McNeely that people suspected of drunken driving can’t automatically be subjected to blood tests without a warrant and without their consent.

The differences between McNeely, Birchfeld and Mitchell are nuanced, but it is in these nuances that the struggle to preserve the Fourth Amendment can best be seen.

The Fourth Amendment has been on life support for a long time.

Our freedoms—especially the Fourth Amendment—continue to be strangulated by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, spy on, probe, pat down, taser, and arrest any individual at any time and for the slightest provocation.

Forced cavity searches, forced colonoscopies, forced blood draws, forced breath-alcohol tests, forced DNA extractions, forced eye scans, forced inclusion in biometric databases: these are just a few ways in which Americans are being forced to accept that we have no control over our bodies, our lives and our property, especially when it comes to interactions with the government.

Worse, on a daily basis, Americans are being made to relinquish the most intimate details of who we are—our biological makeup, our genetic blueprints, and our biometrics (facial characteristics and structure, fingerprints, iris scans, etc.)—in order to clear the nearly insurmountable hurdle that increasingly defines life in the United States: we are now guilty until proven innocent.

Such is life in America today that individuals are being threatened with arrest and carted off to jail for the least hint of noncompliance, homes are being raided by police under the slightest pretext, property is being seized on the slightest hint of suspicious activity, and roadside police stops have devolved into government-sanctioned exercises in humiliation and degradation with a complete disregard for privacy and human dignity.

Remember what happened to Utah nurse Alex Wubbels after a police detective demanded to take blood from a badly injured, unconscious patient without a warrant?

Wubbels refused to go along with the cop’s order, citing hospital policy that requires police to either have a warrant or permission from the patient in order to draw blood.

The detective had neither.

Irate, the detective threatened to have Wubbels arrested if she didn’t comply. Backed up by her supervisors, Wubbels respectfully stood her ground only to be roughly grabbed, shoved out of the hospital, handcuffed and forced into an unmarked car while hospital police looked on and failed to intervene (take a look at the police body camera footage, which went viral, and see for yourself).

Michael Chorosky didn’t have an advocate like Wubbels to stand guard over his Fourth Amendment rights. Chorosky was surrounded by police, strapped to a gurney and then had his blood forcibly drawn after refusing to submit to a breathalyzer test. “What country is this? What country is this?” cried Chorosky during the forced blood draw.

What country is this indeed?

Unfortunately, forced blood draws are just the tip of the iceberg when it comes to the indignities and abuses being heaped on Americans in the so-called name of “national security.”

For example, 21-year-old Charnesia Corley was allegedly being pulled over by Texas police for “rolling” through a stop sign. Claiming they smelled marijuana, police handcuffed Corley, placed her in the back of the police cruiser, and then searched her car for almost an hour. No drugs were found in the car.

As the Houston Chronicle reported:

Returning to his car where Corley was held, the deputy again said he smelled marijuana and called in a female deputy to conduct a cavity search. When the female deputy arrived, she told Corley to pull her pants down, but Corley protested because she was cuffed and had no underwear on. The deputy ordered Corley to bend over, pulled down her pants and began to search her. Then…Corley stood up and protested, so the deputy threw her to the ground and restrained her while another female was called in to assist. When backup arrived, each deputy held one of Corley’s legs apart to conduct the probe.

The cavity search lasted 11 minutes. This practice is referred to as “rape by cop.”

Corley was eventually charged with resisting arrest and with possession of 0.2 grams of marijuana. Those charges were subsequently dropped.

David Eckert was forced to undergo an anal cavity search, three enemas, and a colonoscopy after allegedly failing to yield to a stop sign at a Wal-Mart parking lot. Cops justified the searches on the grounds that they suspected Eckert was carrying drugs because his “posture [was] erect” and “he kept his legs together.” No drugs were found.

During a routine traffic stop, Leila Tarantino was subjected to two roadside strip searches in plain view of passing traffic, while her two children—ages 1 and 4—waited inside her car. During the second strip search, presumably in an effort to ferret out drugs, a female officer “forcibly removed” a tampon from Tarantino. No contraband or anything illegal was found.

Thirty-eight-year-old Angel Dobbs and her 24-year-old niece, Ashley, were pulled over by a Texas state trooper on July 13, 2012, allegedly for flicking cigarette butts out of the car window. Insisting that he smelled marijuana, the trooper proceeded to interrogate them and search the car. Despite the fact that both women denied smoking or possessing any marijuana, the police officer then called in a female trooper, who carried out a roadside cavity search, sticking her fingers into the older woman’s anus and vagina, then performing the same procedure on the younger woman, wearing the same pair of gloves. No marijuana was found.

Sixty-nine-year-old Gerald Dickson was handcuffed and taken into custody (although not arrested or charged with any crime) after giving a ride to a neighbor’s son, whom police suspected of being a drug dealer. Despite Dickson’s insistence that the bulge under his shirt was the result of a botched hernia surgery, police ordered Dickson to “strip off his clothes, bend over and expose all of his private parts. No drugs or contraband were found.”

Meanwhile, four Milwaukee police officers were charged with carrying out rectal searches of suspects on the street and in police district stations over the course of several years. One of the officers was accused of conducting searches of men’s anal and scrotal areas, often inserting his fingers into their rectums and leaving some of his victims with bleeding rectums.

It’s gotten so bad that you don’t even have to be suspected of possessing drugs to be subjected to a strip search.

A North Carolina public school allegedly strip-searched a 10-year-old boy in search of a $20 bill lost by another student, despite the fact that the boy, J.C., twice told school officials he did not have the missing money. The assistant principal reportedly ordered the fifth grader to disrobe down to his underwear and subjected him to an aggressive strip-search that included rimming the edge of his underwear. The missing money was later found in the school cafeteria.

Suspecting that Georgia Tech alum Mary Clayton might have been attempting to smuggle a Chik-Fil-A sandwich into the football stadium, a Georgia Tech police officer allegedly subjected the season ticket-holder to a strip search that included a close examination of her underwear and bra. No contraband chicken was found.

What these incidents show is that while forced searches may span a broad spectrum of methods and scenarios, the common denominator remains the same: a complete disregard for the dignity and rights of the citizenry.

In fact, in the wake of the U.S. Supreme Court’s ruling in Florence v. Burlison, any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials without reasonable suspicion that the arrestee is carrying a weapon or contraband.

Examples of minor infractions which have resulted in strip searches include: individuals arrested for driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, riding a bicycle without an audible bell, making an improper left turn, engaging in an antiwar demonstration (the individual searched was a nun, a Sister of Divine Providence for 50 years).

Police have also carried out strip searches for passing a bad check, dog leash violations, filing a false police report, failing to produce a driver’s license after making an illegal left turn, having outstanding parking tickets, and public intoxication. A failure to pay child support can also result in a strip search.

As technology advances, these searches are becoming more invasive on a cellular level, as well.

For instance, close to 600 motorists leaving Penn State University one Friday night were stopped by police and, without their knowledge or consent, subjected to a breathalyzer test using flashlights that can detect the presence of alcohol on a person’s breath.

These passive alcohol sensors are being hailed as a new weapon in the fight against DUIs. (Those who refuse to knowingly submit to a breathalyzer test are being subjected to forced blood draws. Thirty states presently allow police to do forced blood draws on drivers as part of a nationwide “No Refusal” initiative funded by the federal government.

Not even court rulings declaring such practices to be unconstitutional in the absence of a warrant have slowed down the process. Now police simply keep a magistrate on call to rubber stamp the procedure over the phone.)

The National Highway Safety Administration, the same government agency that funds the “No Refusal” DUI checkpoints and forcible blood draws, is also funding nationwide roadblocks aimed at getting drivers to “voluntarily” provide police with DNA derived from saliva and blood samples, reportedly to study inebriation patterns.

In at least 28 states, there’s nothing voluntary about having one’s DNA collected by police in instances where you’ve been arrested, whether or not you’re actually convicted of a crime.

All of this DNA data is being fed to the federal government.

Airline passengers, already subjected to virtual strip searches, are now being scrutinized even more closely, with the Customs and Border Protection agency tasking airport officials with monitoring the bowel movements of passengers suspected of ingesting drugs. They even have a special hi-tech toilet designed to filter through a person’s fecal waste.

Iris scans, an essential part of the U.S. military’s boots-on-the-ground approach to keeping track of civilians in Iraq and Afghanistan, are becoming a de facto method of building the government’s already mammoth biometrics database. Funded by the Dept. of Justice, along with other federal agencies, the iris scan technology is being incorporated into police precincts, jails, immigration checkpoints, airports and even schools. School officials—from elementary to college—have begun using iris scans in place of traditional ID cards. As for parents wanting to pick their kids up from school, they have to first submit to an iris scan.

As for those endless pictures everyone so cheerfully uploads to Facebook (which has the largest facial recognition database in the world) or anywhere else on the internet, they’re all being accessed by the police, filtered with facial recognition software, uploaded into the government’s mammoth biometrics database and cross-checked against its criminal files. With good reason, civil libertarians fear these databases could “someday be used for monitoring political rallies, sporting events or even busy downtown areas.”

While the Fourth Amendment was created to prevent government officials from searching an individual’s person or property without a warrant and probable cause—evidence that some kind of criminal activity was afoot—the founders could scarcely have imagined a world in which we needed protection against widespread government breaches of our privacy, including on a cellular level.

Yet that’s exactly what we are lacking and what we so desperately need.

Unfortunately, the indignities being heaped upon us by the architects and agents of the American police state—whether or not we’ve done anything wrong—are just a foretaste of what is to come.

As I make clear in my book Battlefield America: The War on the American People, the government doesn’t need to tie you to a gurney and forcibly take your blood or strip you naked by the side of the road in order to render you helpless. It has other methods—less subtle perhaps but equally humiliating, devastating and mind-altering—of stripping you of your independence, robbing you of your dignity, and undermining your rights.

With every court ruling that allows the government to operate above the rule of law, every piece of legislation that limits our freedoms, and every act of government wrongdoing that goes unpunished, we’re slowly being conditioned to a society in which we have little real control over our bodies or our lives.

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SLC mayor, police chief apologize for officer who arrested nurse; criminal investigation to follow

Police department places two officers on leave as internal investigation continues.

Luke Ramseth, September 01, 2017

 

Hours after Salt Lake City’s mayor and police chief apologized for an officer handcuffing a hospital nurse who refused to take blood from an unconscious patient, Salt Lake County District Attorney Sim Gill announced Friday he wanted a criminal investigation into the episode.

“On the face of the evidence, there is concern that is raised about this officer’s conduct,” Gill said in a Friday interview. “But the whole point of an investigation is to gather the information about this situation.”

Gill said he discussed the situation with Mayor Jackie Biskupski and Chief Mike Brown on Friday morning, and they agreed it would be appropriate to conduct an investigation in the name of ”transparency and institutional accountability.”

City officials said late Friday the Unified Police Department would conduct the criminal probe. Meanwhile, an internal affairs investigation by Salt Lake City police into the officer, Detective Jeff Payne, also is ongoing. Payne was placed on administrative leave Friday afternoon, as was a second unnamed officer connected to the confrontation.

Earlier in the day, Brown and Biskupski called the University Hospital nurse, Alex Wubbels, to apologize. They then held a news conference, saying they were alarmed by what they saw on police body camera footage of the arrest, which took place July 26, and said changes to police blood draw policies and officer training had been made.

The mayor said Thursday was the first time she had seen the officer body camera footage documenting the encounter between Payne and Wubbels. The chief said it was the first time he had seen the video in full. The footage became public Thursday during a news conference held by Wubbels’ attorney, Karra Porter, who said no claim or lawsuit has been filed.

“I am sad at the rift this has caused between law enforcement and the nurses we work so closely with,” Brown said. ”I want to be clear, we take this very seriously.”

“What I saw is completely unacceptable to the values of my administration and of the values of the Salt Lake City Police Department,” added Biskupski. “I extend a personal apology to Ms. Wubbels for what she has been through for simply doing her job.”

City offices, including the police department, were bombarded with social media backlash and phone calls as the video skipped around the country Thursday and Friday. And several city and state officials weighed in on Payne’s conduct, including Gov. Gary Herbert, who tweeted Friday morning that Wubbels’ arrest was ”disturbing” and that the city’s police should ”rectify the situation.”

Payne arrived at the hospital July 26, seeking a blood sample from a burned and unconscious patient, 43-year-old William Gray, who had been involved in a fiery collision the same day in northern Utah. Gray was driving a semi north on U.S. 89/91 near Sardine Canyon when a man fleeing from the Utah Highway Patrol crashed a pickup truck into him head-on, according to Logan Police, who investigated the crash. That man, Marcos Torres, 26, died at the scene.

Logan police Capt. Tyson Budge said an investigator on the crash called Salt Lake City police and requested the department get a blood draw on Gray. Budge said such a request is routine, especially involving serious injury or fatal accidents, despite the fact that Gray was not a suspect in the crash. ”It’s being thorough, and documenting everything in a serious crash,” Budge said.

The video footage shows Wubbels explaining that blood cannot be taken from an unconscious patient unless the patient is under arrest, unless there is a warrant allowing the draw or unless the patient consents. Payne acknowledges in the footage that none of those requirements is in place, but he insists that he has the authority to obtain the draw, according to the footage.

After Wubbels consults with several hospital officials about the policy, Payne tells her she is under arrest and grabs her, pulling her arms back and handcuffing her, then putting her in a patrol car. Wubbels screams, ”Stop! Stop! I did nothing wrong!”

In Payne’s report of the episode, he writes that Lt. James Tracy had ordered him to over the phone to arrest Wubbels if she refused to allow him to get a blood sample.

But after Tracy arrived, he learned that the hospital automatically draws and tests blood, and that accident investigators often get a warrant to access the hospital record of the blood draw, Tracy wrote in his own report.

Tracy wrote that it was ultimately determined “that we would release the nurse and write our reports and detectives could decide if charges were appropriate or not for this case.” Police spokeswoman Christina Judd declined to say if the second officer put on leave was Tracy.

Another officer, Denton Harper, who was dispatched to the hospital to assist Payne, wrote in his report that he asked Payne “why he didn’t look into drafting a search warrant for the patient’s blood. Payne told me Logan Police Department said they didn’t have enough probable cause to do so.”

Gill said he reached out to the police chief and the mayor late Friday morning expressing his concern and requesting a criminal investigation into the episode. The district attorney said he asked Brown to find an outside agency to look into the case, and by the end of the day, Unified had agreed to look into it.

Gill said once the investigation is handed over to his office, prosecutors can decide if any laws were broken and if there is “somebody who should be held accountable.” He added that he was grateful that the mayor and chief were “committed to transparency” and were in support of further investigation.

The district attorney wouldn’t specify whether the investigation will be centered on the officer’s actions or something else, saying it would be unfair to make that call without having all the evidence in front of him.

Judd said the agency had initiated an internal affairs investigation within hours of the July 26 encounter. Payne was initially taken off the blood-draw team, and allowed to stay on desk duty as a detective. But, by Friday, as a criminal investigation got underway, he was placed on administrative leave.

The internal affairs investigators would gather the footage, and conduct interviews with all parties involved, then present the information and a recommendation to Chief Brown. Such a probe could result in Payne’s firing.

Payne could not be reached for comment Friday.

Judd said that soon after the blood-draw episode, the assistant chief quickly apologized to hospital administration for the encounter and arrest. The department examined its policy for blood draws, which was tweaked, and committed to additional training for its officers who conduct draws. The department has continued to meet with university medical officials in recent weeks, she said, to ensure adequate procedures are in place so ”it doesn’t happen again.”

The updated policy, provided by the department, states that a blood draw requires consent by the subject, or a search warrant — noting that ”implied consent” by the subject of the draw is no longer allowed. The updated policy also notes that ”blood draws are subject to established search and seizure laws.”

Payne is one of about 10 officers who are certified to take blood from people who have been involved in serious crashes or other accidents, or are suspected of driving under the influence, Judd said. They carry their own blood-draw kits, she said, and are often called upon by other police departments, such as Logan, to take blood at Salt Lake City hospitals.

Judd said there was some confusion about the video, with many people assuming “that the officer was demanding that the nurse draw the blood.” But Judd said Payne was in fact ”demanding to find out where Gray was” being treated in the burn unit of the hospital, so Payne could draw the blood himself. (Gray remained in serious condition at the hospital this week, officials there said.)

Several Salt Lake City Council members and state officials, including Sen. Todd Weiler, R-Woods Cross, who heads the Senate’s judiciary committee, weighed in on the encounter Friday, with Weiler saying he would “stand against any form of unnecessary police brutality or inappropriate behavior.”

Councilman Derek Kitchen posted on Facebook that the bodycam footage “is one of the most disturbing things I’ve seen in awhile.“

Many others around the country apparently agreed.

The video caused an uproar on social media, and multiple national and international news outlets picked up the story Friday. Thousands of people angrily commented on the police department’s Facebook page, many demanding Payne’s firing or suspension. Other Utah police agencies were also being mistakenly bombarded by angry social media commenters, including the Unified Police Department and South Salt Lake police.

A change.org petition called ”Justice for Alex Wubbels” had about 85,000 supporters by Friday evening, while various YouTube videos documenting the encounter had been viewed millions of times. And the local organization Utah Against Police Brutality announced it was holding a protest rally at 6 p.m. Saturday at the Salt Lake City Public Safety Building

National nursing associations weighed in, too.

“It is outrageous and unacceptable that a nurse should be treated in this way for following her professional duty to advocate on behalf of the patient as well as following the policies of her employer and the law,” American Nurses Association President Pam Cipriano said in a statement.

Jean Ross, co-president of National Nurses United, the largest union and professional association of registered nurses, said there was ”no excuse” for Payne’s actions, which she added would send a ”chilling message about the safety of nurses and the rights of patients.”

Hospital administrators sent an open letter to faculty and staff Friday morning. It said when law enforcement officers request blood samples, they should immediately be directed to a supervisor. It said that since the incident, hospital staff has worked with Salt Lake City police to ”create a clear policy” that allows for better communication and protects nurses and patients.

“During a stressful situation Nurse Wubbels chose to focus first and foremost on the care and well-being of her patient,” the letter said. ”She followed hospital procedures and protocols in this matter and was acting in her patient’s best interest.”

Wubbels, in a statement, said she accepted the apologies of the chief and mayor.

“The outpouring of support has been beyond what I could have imagined,” she said. “Since the incident, the city has taken this matter seriously, and I believe that positive change will occur.”

Tribune reporters Jessica Miller, Tiffany Frandsen, Pamela Manson and Mariah Noble contributed to this story.

Luke Ramseth, September 01, 2017, The Salt Lake Tribune, “SLC mayor, police chief apologize for officer who arrested nurse; criminal investigation to follow”, https://www.sltrib.com/news/2017/09/01/salt-lake-city-police-apologize-for-officer-handcuffing-nurse-who-refused-blood-draw-of-unconscious-patient/#gallery-carousel-2543132