Recently, the Indiana Court of Appeals issued an interesting opinion that excluded blood test results in an OWI case because the officer failed to include any specific facts in the probable cause affidavit. The Court of Appeals decision can be read here. Here are the relevant facts from the Court of Appeals decision:
On August 16, 2013, Officer Carey stopped Tonya Herron’s car to investigate whether she was intoxicated. Officer Carey informed Herron of Indiana’s implied consent law and asked her whether she would submit to a chemical test to determine her intoxication level. When she declined, Officer Carey filled out a probable cause affidavit for a blood draw.
The boilerplate introduction to the affidavit states that Officer Carey had reason to believe “that there is now concealed certain evidence, namely: Blood in such person, which is evidence of the crime of operating a vehicle/motor vehicle while intoxicated . . . and tends to show that said person committed such offense[.]” Based on the “X” he placed on the form, his affidavit goes on to say, “In the course of my duties I had occasion to investigate . . . the scene of an operating a vehicle while intoxicated. Officer Carey observed erratic and/or unlawful motor vehicle operation as follows . . . ” The space underneath this prompt was left blank, and all parties agree it was done so by mistake. Officer Carey also did not write anything under the prompt, “I believe that above-named individual was the operator of the motor vehicle in question because . . . .”
His affidavit does mention the following indicia of intoxication: odor of alcoholic beverage on the breath; alcohol beverage containers in plain view; slurred speech; glassy and bloodshot eyes; unsteady balance; and a preliminary breathalyzer test resulting in a .19 reading. Finally, the affidavit states that Herron refused to consent to a certified chemical test after being advised of the implied consent law. The judge signed the warrant, and a blood sample was taken.
Herron filed a motion to suppress the blood test results.
In excluding the blood draw, the Court of Appeals made the following holdings:
The use of boilerplate language in a warrant affidavit is valid “as long as the affidavit contains sufficient facts specific to the search at issue to establish probable cause. The Court found that the affidavit did not include any facts particular to Herron's case.
Additionally, the Court of Appeals made the following statement:
Our standard of review is not whether the magistrate had a substantial basis to understand what crime an officer is alleging; it is instead whether the magistrate had a substantial basis to believe that probable cause of a crime and evidence thereof existed. Put pithily, if an officer’s affidavit stated solely that an individual “committed a crime that rhymes with schmurder,” a magistrate would have a substantial basis to believe the officer was talking about murder, but would not have a substantial basis to believe that probable cause existed regarding a murder. Reading the affidavit in this case, a magistrate would clearly have a substantial basis to believe that Officer Carey meant to allege that Herron operated a vehicle while intoxicated, but would not have a substantial basis to find probable cause that Herron actually did commit that offense.
In conclusion the Court of Appeals held:
In summary, when one focuses on the individualized information contained in the affidavit, rather than the boilerplate, one finds the following: at 9:04 p.m. on August 16, 2013, at the intersection of Southport Road and McFarland Boulevard, Officer Carey noticed that Herron exhibited signs of intoxication, so he read to her Indiana’s Implied Consent Law but she refused to consent to a chemical test. This combination of facts does not create probable cause that a crime was committed, and therefore the warrant was invalid.