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COA: Warrant to take blood authorized testing blood

State v. Collin M. Gallagher, 2017AP1403, 4/5/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Police took Gallagher’s blood by a warrant that the parties agree was supported by probable cause of operating while intoxicated. He argues, though, that the warrant did not, by its terms, authorize the subsequent testing of his blood–or, that if it did authorize testing, its failure to specify what sorts of testing were permitted rendered it an unconstitutional “general warrant.”

The court concludes that Gallagher’s first argument is foreclosed by State v. Riedel, 2003 WI App 18, 259 Wis. 2d 921, 656 N.W.2d 789. That case held that where law enforcement have lawfully seized evidence, they do not need to get a warrant to examine the seized evidence. (¶6). Gallagher seeks to distinguish Riedel on the ground that it involved a seizure under an exception to the warrant requirement, rather than by warrant. The court finds this distinction not supported in the Riedel discussion. (¶8).

The court goes on to consider a couple of other possibilities: first, the notion that the particularity requirement applicable to warrants would require a different result than Riedel prescribes; second, that Riley v. California, 134 S. Ct. 2473 (2014), which required a search warrant to search a lawfully-seized cell phone, overruled Riedel. As to the particularity requirement, the court concludes that applying it to invalidate the testing here would effectively overrule Riedel–a job for the supreme court. (¶10). Regarding Riley, the court thinks it not right on point, being about cell phones rather than blood. And once again, the court finds any argument that the principle of Riley invalidates the testing here to be above its pay grade. (¶¶11-12).

Gallagher also argues that, if the warrant for the taking of his blood is read to authorize its testing, there is no limit to what type of testing it authorizes, and that this makes it a general warrant. The court disagrees, holding that the warrant is, at most, overly broad. Evidence taken under an overly broad warrant is suppressed if it was seized from an area where there was no probable cause to search, but not if it was found in an area where there was probable cause. See State v. Noll, 116 Wis. 2d 443, 453, 343 N.W.2d 391 (1984). By analogy, here, it is clear there was probable cause to search Gallagher’s blood for alcohol, so any overbreadth problem is no ground to suppress the alcohol that was found. (¶¶13-16).

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