IN THE 'COURT OF COMMON PLEAS FOR THE STATE ()F DELAWARE
IN AND FOR NEW CASTLE C()UNTY
STATE OF DELAWARE, ) ) ) V. ) ) ) Cr. A.No. 13ll00l403 ) JONATHAN AZOULAY, ) ) ) Defendaiit. ) Submitted: July 23, 2014 Decided: August 20, 2014 Christina M. Kontis John P. Deckers, P.A. Deputy Attorney General 800 North King Street 820 N. French Street, 7"' Floor Wilmington, DE 19801 Wilmington, DE 19801 Attorneyjbr Dej%ndant
Attorneyfor the State ofDelaware
MEMORANDUM OPINION ON I)EFENDANT’S MOTION TO SUPPRESS
Defendant Jonathan Azoulay ("Azoulay") was arrested on November l, 2013, and was subsequently charged with the offense of driving under the influence of drugs or alcohol ("DUI offense") in violation of ZlDeI. C. Section 4l77(a)(1). An investigation ensued, and a blood sample was drawn from Azoulay. 0n April 14, 2014, Azoulay timely noticed the present Motion to suppress the blood draw. A hearing on the motion was held on June 4, 2014, with the State presenting Corporal Peitlock of the Delaware State Police as the sole witness.
FACTS At the hearing, Corporal Peitlock testified to the following On November l, 2013,
Corporal Peit1ock was on patrol when he observed a blue Ford Econoline drifting in and out of
its lane of travel on Philadelphia Pike. As the vehicle approached Cauffiel Parkway, it suddenly
braked and turned while in the left hand travel lane and failed to signal within 300 feet of making
the tum. Corporal Peitlock activated his emergency lights and pulled the vehicle over before
approaching.
Corporal Peitlock made contact with the driver and identified him as Azoulay. Additiona.lly, Corporal Peitlock testified that Azoulay’s body was partially out of the vehicle, and unprompted, stated that he nearly missed his turn. Corporal Peitlock testified that he instructed Azoulay to remain in the vehicle. Corporal Peitlock detected an odor of "burnt marijuana" emanating from the vehicle and observed Azoulay as having bloodshot glassy eyes. Corporal Peitlock asked Azoulay to exit the vehicle. After asking about any illegal items that Azoulay might have on him, Azoulay responded that he had a knife in his pocket. Corporal Peitlock placed Azoulay under arrest and searched Azoulay’s vehicle, whereupon he discovered marijuana.
While Corporal Peitlock was transporting Azoulay back to Troop l, and without administering any Mz`randa warnings, he asked Azoulay a series of questions about Azoulay’s marijuana usage.] This resulted in Azoulay admitting to his consumption of marijuana. following this, Corporal Peitlock stated, “We’re gonna go back to Troop l and when we get there I’rn gonna do some field sobriety tests on you and then we’ll take it from there." Corporal Peitlock later said, "I need to check your level of impairment." After arriving at Troop l and administering field sobriety tests, Corporal Peitlock told Azoulay that he was "going to draw blood," and then presented the defendant with a consent form, which Azoulay signed. The form
states in relevant part that the person subject to the search has “knowingly and voluntarily given
l The State has admitted that this was in violation of Azoulay’s Mz'randa rights. 2
[hisfher] consent to search without fear, threat, or promise (express or irnplied). . . . [he/she] ha[s] been advised by Corporal Peitlock that [he/she] ha[s] the right to refuse giving [his/her] consent to search." Azoulay signed the form at approximately 3:40 AM, roughly an hour and a half after the arrest.
Azoulay argues that the violation of his Mz`randa rights, along with the authoritative nature and phrasing of Corporal Peitlock’s statements surrounding the DUI investigation, render any consent involuntary by reason of coercion and mere acquiescence to authority. Azoulay contends that, because consent was not voluntarily given, the resultant blood draw was in violation of his Fourth Amendment rights to be protected against unreasonable searches and seizures.
The State argues in response that there is no controlling precedent to suggest that consent obtained subsequent to a lld'iranda violation is necessarily involuntary. The State further argues that the blood draw is admissible because there was probable cause and because consent meets the four Cooke factors.
LEGAL STANDARD
Under the United States and Delaware Constitutions, police officers are prohibited from effecting any search or seizure without consent, a Warrant, or a recognized exception.z
Drawing blood is protected by the Fourth Amendment of the United States constitution, as well as Article I, Section Six of the Delaware Constitution. lt is well settled that in the absence of a warrant, blood may only be drawn for the purposes of a DUI investigation when there is
consent or a very narrow set of exceptions.3 When the State relies on consent, the State must
2 U.S. CoNsT. amend IV; DEL. CoNsT. art I, § 6. 3 Mas@ur: v_ M¢Neezy, 133 s.ci. 1552 (2013).
demonstrate that consent was voluntary.4 To determine whether consent was voluntarily given, Delaware courts examine four factors under the totality of the circumstances: (l) defendant's knowledge of the constitutional right to refuse consent; (2) defendant's age, intelligence, education, and language ability; (3) the degree to which the individual cooperates with police; and (4) the length of detention and the nature of questioning, including the use of physical punishment or other coercive police behavior.s This analysis also includes examining whether there were any "subtly coercive" elements to the police contact prior to the defendant giving consent.é
The Superior Court has left undecided whether consent obtained following a Ad'iranda violation is necessarily involuntary as a matter of iaw.? There is no other precedent directly on point from Delaware courts. However, the United States Supreme Court held that a coerced statement in violation of Miranda does not create a per se bar against the admission of non- testimonial evidence resulting from that statements The Court has also held that blood samples do not provide the State with evidence of a testimonial or communicative nature.g Additionally, in Patane, the Court held that the subject matter of Mz`randa concerns the Self-Incrimination Clause of the Fifth Amendment, which provides protection from "making unwarned statements” to the police, not fruits of the unwarned statement.'o introduction of the non-testimonial fruit of a voluntary statement...does not implicate the [Self-Incrimination] Clause.l' The Pm‘ane Court
declined to extend Fifth Amendment protection beyond the presumption that statements taken
4 Schneckloth v. Busramonte, 412 U.S. 218 (1973).
5 cooke v. smze, 977 A.zd 303 (oei. 2009).
6 stare v. Harra, 642 A.zd 1242 (Dei. 1993).
’ stare v. coram 2001 WL 1729143 (Del. super. Nov. 29, 2001). 3 us v. Pazane, 542 U.s. 630 (2004).
" schmerber v. carzf@rnza, 334 U.s. 757, 761 (1966).
‘° Parane, 542 U.s. 630 (2004).
“ra. a 643.
without sufficient Mz'randa warnings have been coerced only for certain purposes, and exclusion of the physical fruit of those coerced statements will occur only when necessary to protect the privilege against self-incrimination.lz Thus, a failure to give a suspect Miranda warnings does not require suppression of the physical fruits of the suspect's unwarned but voluntary statements ‘3 I)ISCUSSION
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IN THE 'COURT OF COMMON PLEAS FOR THE STATE ()F DELAWARE
IN AND FOR NEW CASTLE C()UNTY
STATE OF DELAWARE, ) ) ) V. ) ) ) Cr. A.No. 13ll00l403 ) JONATHAN AZOULAY, ) ) ) Defendaiit. ) Submitted: July 23, 2014 Decided: August 20, 2014 Christina M. Kontis John P. Deckers, P.A. Deputy Attorney General 800 North King Street 820 N. French Street, 7"' Floor Wilmington, DE 19801 Wilmington, DE 19801 Attorneyjbr Dej%ndant
Attorneyfor the State ofDelaware
MEMORANDUM OPINION ON I)EFENDANT’S MOTION TO SUPPRESS
Defendant Jonathan Azoulay ("Azoulay") was arrested on November l, 2013, and was subsequently charged with the offense of driving under the influence of drugs or alcohol ("DUI offense") in violation of ZlDeI. C. Section 4l77(a)(1). An investigation ensued, and a blood sample was drawn from Azoulay. 0n April 14, 2014, Azoulay timely noticed the present Motion to suppress the blood draw. A hearing on the motion was held on June 4, 2014, with the State presenting Corporal Peitlock of the Delaware State Police as the sole witness.
FACTS At the hearing, Corporal Peitlock testified to the following On November l, 2013,
Corporal Peit1ock was on patrol when he observed a blue Ford Econoline drifting in and out of
its lane of travel on Philadelphia Pike. As the vehicle approached Cauffiel Parkway, it suddenly
braked and turned while in the left hand travel lane and failed to signal within 300 feet of making
the tum. Corporal Peitlock activated his emergency lights and pulled the vehicle over before
approaching.
Corporal Peitlock made contact with the driver and identified him as Azoulay. Additiona.lly, Corporal Peitlock testified that Azoulay’s body was partially out of the vehicle, and unprompted, stated that he nearly missed his turn. Corporal Peitlock testified that he instructed Azoulay to remain in the vehicle. Corporal Peitlock detected an odor of "burnt marijuana" emanating from the vehicle and observed Azoulay as having bloodshot glassy eyes. Corporal Peitlock asked Azoulay to exit the vehicle. After asking about any illegal items that Azoulay might have on him, Azoulay responded that he had a knife in his pocket. Corporal Peitlock placed Azoulay under arrest and searched Azoulay’s vehicle, whereupon he discovered marijuana.
While Corporal Peitlock was transporting Azoulay back to Troop l, and without administering any Mz`randa warnings, he asked Azoulay a series of questions about Azoulay’s marijuana usage.] This resulted in Azoulay admitting to his consumption of marijuana. following this, Corporal Peitlock stated, “We’re gonna go back to Troop l and when we get there I’rn gonna do some field sobriety tests on you and then we’ll take it from there." Corporal Peitlock later said, "I need to check your level of impairment." After arriving at Troop l and administering field sobriety tests, Corporal Peitlock told Azoulay that he was "going to draw blood," and then presented the defendant with a consent form, which Azoulay signed. The form
states in relevant part that the person subject to the search has “knowingly and voluntarily given
l The State has admitted that this was in violation of Azoulay’s Mz'randa rights. 2
[hisfher] consent to search without fear, threat, or promise (express or irnplied). . . . [he/she] ha[s] been advised by Corporal Peitlock that [he/she] ha[s] the right to refuse giving [his/her] consent to search." Azoulay signed the form at approximately 3:40 AM, roughly an hour and a half after the arrest.
Azoulay argues that the violation of his Mz`randa rights, along with the authoritative nature and phrasing of Corporal Peitlock’s statements surrounding the DUI investigation, render any consent involuntary by reason of coercion and mere acquiescence to authority. Azoulay contends that, because consent was not voluntarily given, the resultant blood draw was in violation of his Fourth Amendment rights to be protected against unreasonable searches and seizures.
The State argues in response that there is no controlling precedent to suggest that consent obtained subsequent to a lld'iranda violation is necessarily involuntary. The State further argues that the blood draw is admissible because there was probable cause and because consent meets the four Cooke factors.
LEGAL STANDARD
Under the United States and Delaware Constitutions, police officers are prohibited from effecting any search or seizure without consent, a Warrant, or a recognized exception.z
Drawing blood is protected by the Fourth Amendment of the United States constitution, as well as Article I, Section Six of the Delaware Constitution. lt is well settled that in the absence of a warrant, blood may only be drawn for the purposes of a DUI investigation when there is
consent or a very narrow set of exceptions.3 When the State relies on consent, the State must
2 U.S. CoNsT. amend IV; DEL. CoNsT. art I, § 6. 3 Mas@ur: v_ M¢Neezy, 133 s.ci. 1552 (2013).
demonstrate that consent was voluntary.4 To determine whether consent was voluntarily given, Delaware courts examine four factors under the totality of the circumstances: (l) defendant's knowledge of the constitutional right to refuse consent; (2) defendant's age, intelligence, education, and language ability; (3) the degree to which the individual cooperates with police; and (4) the length of detention and the nature of questioning, including the use of physical punishment or other coercive police behavior.s This analysis also includes examining whether there were any "subtly coercive" elements to the police contact prior to the defendant giving consent.é
The Superior Court has left undecided whether consent obtained following a Ad'iranda violation is necessarily involuntary as a matter of iaw.? There is no other precedent directly on point from Delaware courts. However, the United States Supreme Court held that a coerced statement in violation of Miranda does not create a per se bar against the admission of non- testimonial evidence resulting from that statements The Court has also held that blood samples do not provide the State with evidence of a testimonial or communicative nature.g Additionally, in Patane, the Court held that the subject matter of Mz`randa concerns the Self-Incrimination Clause of the Fifth Amendment, which provides protection from "making unwarned statements” to the police, not fruits of the unwarned statement.'o introduction of the non-testimonial fruit of a voluntary statement...does not implicate the [Self-Incrimination] Clause.l' The Pm‘ane Court
declined to extend Fifth Amendment protection beyond the presumption that statements taken
4 Schneckloth v. Busramonte, 412 U.S. 218 (1973).
5 cooke v. smze, 977 A.zd 303 (oei. 2009).
6 stare v. Harra, 642 A.zd 1242 (Dei. 1993).
’ stare v. coram 2001 WL 1729143 (Del. super. Nov. 29, 2001). 3 us v. Pazane, 542 U.s. 630 (2004).
" schmerber v. carzf@rnza, 334 U.s. 757, 761 (1966).
‘° Parane, 542 U.s. 630 (2004).
“ra. a 643.
without sufficient Mz'randa warnings have been coerced only for certain purposes, and exclusion of the physical fruit of those coerced statements will occur only when necessary to protect the privilege against self-incrimination.lz Thus, a failure to give a suspect Miranda warnings does not require suppression of the physical fruits of the suspect's unwarned but voluntary statements ‘3 I)ISCUSSION
As stated above, concerning the admissibility of the blood sample, the law is well settled by the United States Supreme Court that a failure to give a suspect ]Llr`randa warnings under the Fifth Amendment does not require suppression of the physical fruits of the suspect's unwamed but voluntary statements under the fourth Amendment." As discussed in Patane, the Fifth Amendment’s Self-lncrimination Clause "contains its own exclusionary rule that automatically protects those subjected to coercive police interrogations from the use of their involuntary statements;[t]his explicit textual protection supports a strong presumption against expanding the
Mz`randa rule any further."l§
In Patane, after the defendant was arrested for violating a restraining order, defective Miranda warnings were given.lé The arresting officer questioned the defendant about the location of a firearm he was previously in possession of, and after some initial resistance by the defendant, he admitted that the firearm was in his bedroom.n The
defendant then gave consent to the arresting officer to enter and retrieve the pistol.ls The Court
held that although the statement was coerced and thus inadmissible, it did not prevent the
'2 1a ar 641. l$ld "‘ra. ‘Sra. ar 639. ‘6 1a 31635. " 1a " rd.
introduction of the weapon against the defendant in the prosecution’s case-in-chief.lg The instant case is analogous to Patane because in this case, Azoulay was arrested and interrogated without the administration of Mz`randa warnings. He admitted to his consumption of marijuana, and just as the defendant in Patane gave the arresting officer his consent to retrieve the pistol, Azoulay gave consent to the blood sample
Furthermore, as Schmerber indicates, blood samples are non-testimonial statements, and consequently do not trigger the Filih Amendment Self-lncrimination Clause.zo Under these facts, it is clear that the blood sample, as non-testimonial, tangible evidence, is adrnissible, provided that Azoulay’s consent was both voluntary and valid.
Turning to the issue of whether consent was validly and voluntarily given, under the first Cooke factor, in determining the depth of the knowledge held by the defendant of his Constitutional rights, the consent form does state that Azoulay has been informed of his right to refuse. While the Mz`randa violations might weaken this element, these two issues are not so closely related that a lack of proper advisement on Constitutional rights for one issue overrides the advisement of such rights on the other.
On the second factor, pertaining to age, intelligence, education, and language ability, there is not any evidence that suggests an issue for Azoulay. The brief accompanying this Motion does not assert any such deficiency or difficulty, and as such there is no basis to find any such deficiency.
Next, looking at the degree of cooperation given to the police, the testimony of Corporal
Peitlock suggests that Azoulay was cooperative. When asked about any illegal items he had in
‘9 1a ar 630. 10 schmerber, 334 U.s. 757, 761 (1966).
his possession, Azoulay admitted to having a knife. There is no indication that he was argurnentative, disruptive, or anything else to suggest a lack of cooperation.
O`n the fourth .faetor, regarding length of detention, nature of questioning, or other
coercive police behavior,-the statements made by Corporal Peitlock to Azoulay possess a tenor
“of authority; howeve_r, given the totality of the circumstances, they appear more conversational
than authoritative. There was no command to sign the consent form,.no threat of action if he
failed to_do so, and nothing to suggest even subtle coercion on the part of the officer.
. Furthennore, the length of time was exceedingly short, and the consent came after Azoulay
admitted to marijuana usage. lt is conceivable that, faced with his prior admission, Azoulay would see no reason to withhold consent, and thus agree to the search of his own free will. CONCLUSION For the above reasons, the State has proved by a preponderance of the evidence that
Azoulay’s consent to the blood draw was voluntarily given and that Azoulay’s Constitutional rights were not violated. Accordingly, Defendant’s Motion to Suppress is hereby DENIED.
IT IS SO ORDERED THISQO DAY OF AUGUST 2014.
\l'
e`flo o he Carl C. D berg, Ju ge