Officer Frank Shuler saw defendant’s car stop at a red
traffic light, pause for a few seconds, and then proceed
through the red light. The officer effectuated a traffic
stop, and when he approached the driver’s side window, he
smelled alcohol, and noticed the defendant’s eyes were
bloodshot and watery. The officer requested the
defendant to perform field sobriety tests, which the defendant
failed.
The officer then conducted a preliminary breath test
(PBT). He testified at the preliminary examination that
he checked defendant’s mouth before placing him in the back of
the patrol car, waited 15 minutes, and then administered the
test.
Officer Shuler further testified that he checked
defendant’s mouth, and found it to be empty, but he
subsequently admitted that, when he began to read defendant
his PBT rights, he noticed that defendant had a little piece
of paper in his mouth. Officer Shuler explained that he
did not believe that the paper would compromise the PBT
results, and therefore waited only a few minutes after
noticing the paper before administering the test.
Defendant’s PBT result was 0.15.
Officer Shuler placed defendant under arrest. He read
defendant his chemical test rights, and asked for a blood
sample. Defendant initially consented, and then
refused. Officer Shuler then proceeded to secure a
search warrant. On the form, he indicated that defendant
“conducted field sobriety test poorly.” The officer did
not disclose in his affidavit that the defendant had paper in
his mouth less than 15 minutes before he conducted the
PBT.
Based on the affidavit, the magistrate issued a search
warrant for a blood sample. The blood test revealed that
defendant had a blood alcohol content of 0.11. Defendant
was charged, as a third offender, with operating a motor
vehicle while intoxicated.
The Circuit Court found that the officer recklessly omitted
information that the defendant had paper in his mouth less
than 15 minutes before the administration of the PBT;
recklessly stated in the affidavit that Nystagmus was present
without informing the magistrate that he had administered the
HGN test in a non-standardized way, intentionally or
recklessly misrepresented that defendant’s speech was slurred;
intentionally or recklessly misrepresented the defendant
stopped counting at an appropriate time during the one-legged
stand test; and intentionally or recklessly misrepresented
that defendant was unable to touch his index fingertips to the
tip of his nose.
The circuit court concluded that on the basis of the
remaining information in the affidavit, that a strong odor of
intoxicants emanated from defendant and that defendant had
watery eyes, there was insufficient evidence to support a
finding of probable cause to issue the search warrant, and the
BAC evidence should be suppressed.
The Court of Appeals stated that the circuit court did not
clearly err when it determined that the officer acted
intentionally or with reckless disregard for the truth when he
omitted this information about the PBT. However, the
Court stated that “the fact that Shuler intentionally or
recklessly omitted relevant information does not, by itself,
invalidate the warrant.”
The Court concluded that the omission by the Officer of the
fact that the defendant had paper in his mouth was not
material, because defendant presented insufficient evidence
that the presence of paper in his mouth would significantly
call into question the accuracy of the PBT result. The
court further concluded that the remaining information in the
search warrant, even when the improperly omitted information
is removed, is sufficient to form probable cause to issue a
search warrant for the defendant’s blood. “When
reviewing a search warrant affidavit, we must read it in a
“common sense and realistic manner, not a crabbed or
hypertechinal manner.”
The court found that the circuit court erred in determining
that a reasonable magistrate would not have found probable
cause to issue a redacted search warrant.
The court reversed and remanded the case to the circuit
court.
People v. Mullen , case no. 281202, released
December 23, 2008.
