Opinion
Case No. 5:21-PO-605-F-1
2022-09-29
UNITED STATES of America, Plaintiff/Appellee, v. Austin FIELDSON, Defendant/Appellant.
Stephanie Hambrick, DOJ-USAO, Casper, WY, for Plaintiff/Appellee. Jami L. Rebsom, Jami Rebsom Law Firm PLLC, Livingston, MT, for Defendant/Appellant.
Stephanie Hambrick, DOJ-USAO, Casper, WY, for Plaintiff/Appellee. Jami L. Rebsom, Jami Rebsom Law Firm PLLC, Livingston, MT, for Defendant/Appellant. OPINION AND ORDER DENYING DEFENDANT'S APPEAL FROM MAGISTRATE JUDGE DECISION NANCY D. FREUDENTHAL, UNITED STATES SENIOR DISTRICT JUDGE
Through counsel, Defendant-Appellant Austin Fieldson appeals from the decision of Magistrate Judge Mark L. Carman's denying his motion to suppress and from the part of Chief Magistrate Judge Kelly H. Rankin's judgment convicting him of driving under the influence. ECF 35 (notice of appeal). Defendant filed an opening brief, and the government filed a response brief. The time for Defendant's reply brief, if any, has passed.
On appeal, Defendant asserts that park rangers should have informed him that he could obtain an independent blood alcohol test after he was arrested, and he was precluded from doing so by being detained without bond. Defendant argues the lack of advisement and detention without bond violated Wyoming Statute § 31-6-102(a)(ii)(C), his Fifth Amendment right to not incriminate himself, and his due process rights to exculpatory evidence and other due process. For the reasons that follow, the Court denies the appeal. I. Background
On August 16, 2021, three citations were filed against Defendant in the Yellowstone Justice Center. ECF 1 (operating vehicle under the influence of alcohol/drugs in violation of 36 C.F.R. § 4.23(a)(1)); ECF 3 (speeding 52 miles per hour in a 35 mile per hour zone in violation of 36 C.F.R. § 4.21(c)); ECF 4 (operating a motor vehicle while having a breath alcohol concentration of 0.08 or more, in violation of 36 C.F.R. § 4.23(a)(2)). Defendant pleaded not guilty.
The citations arose out of a traffic stop that took place within Yellowstone National Park on August 15, 2021. Defendant does not appear to dispute Magistrate Judge Carman's recitation of the facts regarding that incident, although as will be addressed below, he adds some details and recharacterizes others. U.S. Park Ranger J. Ropp pulled Defendant over for speeding. U.S. Park Ranger N. Leffel arrived seconds later. One of the rangers wore a bodycam, and the parties submitted the footage (audio and video) of the traffic stop and field tests as evidence on the motion to suppress. The rangers noted multiple open containers in Mr. Fieldson's vehicle. One of the rangers asked Defendant if he had been drinking, and he said yes.
Defendant consented to take roadside sobriety tests, including monitoring eye movements, walking in a straight line, and balancing on one foot.
After one ranger noted multiple signals of a lack of sobriety, he conferred with the other ranger, and they determined that a breathalyzer test was the most accurate method of moving forward to better determine Mr. Fieldson's sobriety. Before administering the breathalyzer, the rangers made it clear that this was a voluntary test and that if Mr. Fieldson took the test, he may not like the results. Mr. Fieldson then voluntarily took the breathalyzer test, and the result was significantly above the legal limit. Mr. Fieldson was taken into custody. He was transported to West Yellowstone where he was read the National Park Service's Implied Consent Advisement:
1. You are under arrest for operating or being in actual physical control of a motor vehicle while under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation.ECF 20-1.
2. Under Federal law, as the requesting officer, I have the right to select the type of test or tests you will be asked to take. For the purpose of this advisement, I am asking if you consent to take a breath test.
3. Under Federal law, a person in your situation is deemed to have given their consent to testing for alcohol and/or drug or drugs.
4. If you refuse to consent to this breath test, an additional charge under 36 C.F.R. 4.23(c)(2) will be filed and additional penalties for that violation may result in up to a $5,000 fine and/or 6 months imprisonment.
5. If you refuse to consent to this breath test, your driver's license may be suspended, or there may be administrative penalties. You may have the right to an administrative hearing by the state licensing department before your driver's license is suspended. This may also apply to a commercial driver's license.
6. If you refuse to consent to this breath test, your privilege to operate a motor vehicle upon the special maritime and territorial jurisdiction of the United States (which includes Yellowstone National Park) will be denied for the period of a year beginning on the dates of arrest upon which the test was refused.
7. Your test results or testing refusal may be used as evidence in a criminal trial. Additionally, if you refuse testing, the presiding Judge may infer from your refusal that you were under the influence of alcohol and/or drugs. The inference is rebuttable.
Mr. Fieldson stated his understanding of the advisement and signed the written form. Id. Mr. Fieldson was administered a breathalyzer test using the Intoxilyzer 8000. The officers recorded two samples, both registering at 0.125. Mr. Fieldson did not request an independent test. The officers then transported Mr. Fieldson to the Mammoth jail.
Defendant filed a motion to suppress evidence arguing the same issues he presents on appeal: (1) that the rangers should have informed him when he was arrested that he could obtain an independent blood alcohol test, and (2) that he was precluded from obtaining such a test by being detained without bond. The parties agreed at a status conference that Magistrate Judge Carman could rule on the motion based on the bodycam footage, briefs and documentary exhibits and did not need to hold a hearing on the motion. In a seven-page written order, Magistrate Judge Carman denied the motion to suppress on January 7, 2022. ECF 21.
Chief Magistrate Judge Rankin held a bench trial on April 13, 2022. The Defendant was found guilty on the first two charges, for operating a vehicle while under influence of alcohol to a degree that renders the operator incapable of safe operation, in violation of 36 C.F.R. § 4.23(a)(1), and speeding, in violation of 36 C.F.R. § 4.21(c). He was not guilty on the third citation, operating a vehicle with BAC of 0.08 or more. ECF 31. The Defendant was sentenced to 6 days in the custody of the U.S. Bureau of Prisons with credit for two days served. Id. He was also ordered to pay $20 in assessments, a $30 processing fee, and $875 in fines. Id. The Court granted Defendant's motion to stay the sentence while his appeal is pending. II. Jurisdiction and Standard of Review
Defendant does not appeal from his conviction on the speeding charge.
The Court has jurisdiction under 18 U.S.C. § 3402: "In all cases of conviction by a United States magistrate judge an appeal of right shall lie from the judgment of the magistrate judge to a judge of the district court of the district in which the offense was committed." "The defendant is not entitled to a trial de novo by a district judge. The scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Fed. R. Crim. Pro. 58(g)(2)(D).
"Following the denial of a motion to suppress, we review factual findings for clear error and legal conclusions de novo." United States v. Soza, 643 F.3d 1289, 1291 (10th Cir. 2011). The questions of whether Defendant's due process rights - including the right to exculpatory evidence - were violated are questions of law. United States v. Nickl, 427 F.3d 1286, 1296 (10th Cir. 2005) (due process rights generally); United States v. Summers, 414 F.3d 1287, 1305 (10th Cir. 2005) (right to exculpatory evidence). Likewise, "[d]etermining whether an individual has properly invoked the privilege [against self-incrimination] is a question of law, which we review de novo." United States v. Von Behren, 822 F.3d 1139, 1145 (10th Cir. 2016) (internal quotation marks omitted). III. Analysis
Defendant's brief is difficult to follow. Fragmentary case citations, lack of proper formatting to distinguish case quotes from Defendant's argument, and lack of clarity in presenting the issues significantly complicate the Court's task. The Court addresses Defendant's arguments as best it understands them.
A. The Magistrate Judge's Fact Findings
In the background section of his brief, Defendant notes the park rangers used flashlights to see through his vehicle's windows and that the open containers were never tested for alcohol. He also challenges the rangers' conclusions from the field sobriety tests and the accuracy of the field breath test. But his motion to suppress did not develop any argument regarding those facts, and neither does his opening brief. He also did not order a trial transcript. In any case, the Court has reviewed the bodycam footage for clear error in Magistrate Judge Carman's fact findings.
To be clearly erroneous, a finding must be more than possibly or even probably wrong; the error must be pellucid to any objective observer. We will reverse the district court's finding only if it is without factual support in the record or if, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made.United States v. Madrid, 713 F.3d 1251, 1256-57 (10th Cir. 2013) (internal quotation marks and citations omitted).
Magistrate Judge Carman's findings are supported by the record. For instance, the bodycam recording shows the several open containers are plainly beer cans next to the driver's seat and in the front passenger area. Recording at 28:47. Defendant points out that his eyes were not visible in the recording during the horizontal nystagmus test, and he contends the rangers did not properly administer the field tests. But at the least, Defendant does not dispute that he failed the one-leg standing test. Defendant visibly failed that test at least twice in the recording while he counted "six" and "eleven." Defendant also asserts that he was not given a "preliminary screening test advisory" for the field breath test, but this likewise contradicts the recording, in which the ranger audibly informed Defendant that the portable breath test was voluntary. Recording at 14:20-22. There is no clear error in Magistrate Judge Carman's factual findings.
B. Federal Due Process Rights
Defendant argues that under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the government withheld exculpatory evidence when the rangers did not advise him of a right to obtain an independent alcohol test. He further asserts that the rangers destroyed the possibility of his obtaining such evidence by taking him into custody.
To establish a Brady violation, [defendant] must show that "(1) the prosecution suppressed evidence; (2) the evidence was favorable to the accused; and (3) the evidence was material to the defense." . . . "[W]e will reverse the district court only if the suppression of evidence denied the defendant a fair trial."Summers, 414 F.3d at 1305-06 (citing United States v. Lopez, 372 F.3d 1207, 1210 (10th Cir. 2004)). "Evidence is material under Brady only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Garcia-Martinez, 730 F. App'x 665, 672 (10th Cir. 2018) (internal quotation marks omitted). "A 'reasonable probability' means 'a probability sufficient to undermine confidence in the outcome.' " Id. at 672-73.
Defendant ignores United States v. Zimmerman, 116 F. Supp. 3d 1280 (D. Wyo. 2015), a case in which Magistrate Judge Carman denied a motion to suppress on the same theory. Judge Carman noted that Mr. Zimmerman (like Mr. Fieldson) provided no relevant authorities to support an exculpatory evidence theory regarding the lack of advisement or opportunity to obtain an independent blood alcohol test. Id. at 1290. Chief Judge (then Judge) Skavdahl affirmed that decision on appeal. ECF 44-4 (United States v. Zimmerman, No. 15-cr-251-SWS, slip order ECF 53 (D. Wyo. June 15, 2016)). The Court cannot improve upon Chief Judge Skavdahl's concise statement of the law, and therefore quotes from it at length.
Defendant's counsel also represented the defendant in that case. ECF 44-3 (copy of suppression motion).
The federal implied consent law, like many state implied consent laws, requires a person operating a motor vehicle within special maritime and territorial jurisdiction of the United States to consent to chemical testing when arrested for driving while under the influence of drugs or alcohol. 18 U.S.C. § 3118(a). An individual refusing to submit to chemical testing, and who has been advised
of the consequences of doing so, will be prohibited from driving within special maritime and territorial jurisdiction for one year. 18 U.S.C. § 3119(b)Id. at 11-12.
The Supreme Court has upheld implied consent laws when they do not directly compel testing, but rather offer a suspect the choice of submitting to a blood-alcohol test or having his refusal used against him. South Dakota v. Neville, 459 U.S. 553, 563, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). In Neville, the Supreme Court held that evidence of refusal to submit to the test could be used at trial even if the defendant was not warned of that particular potential use. Id. at 566, 103 S.Ct. 916. The court noted the warnings given by the officers in that case "contained no [ ] misleading implicit assurances as to the relative consequences of [the defendant's] choice." Id. at 565, 103 S.Ct. 916. The officers in that case informed the defendant that if he chose to submit to the test, he had the right to know the results and could choose to have an additional test administered by a person of his choosing. Id.
Mr. Zimmerman had been read a full advisement that included the consequences if he refused the test - including that it could be used as evidence against him and the state issuing his driver's license could suspend his license. He was advised he had the right to refuse the test, was asked if he consented, and he did so without any hesitation. Id. at 12. In this case, Mr. Fieldson likewise does not dispute that he was given the full advisement that appears above, was asked if he consented, and he did so without expressing any reservation.
Like Mr. Zimmerman, Mr. Fieldson relies heavily on Neville.
Appellant appears to assert the independent testing option noted in Neville is required in order for an implied consent law and advisement to be constitutional. As noted in the Magistrate Judge's order, nothing indicates the Neville court meant to say implied consent laws are valid only when the defendant is able to obtain independent testing. Appellant points to no subsequent cases that say anything to that affect. The warnings as given to Appellant were not misleading, and explained the relative consequences of refusing the test. Under Neville, the advisement was sufficient.Zimmerman, No. 15-cr-251-SWS, ECF 53 at 13.
This Court finds Zimmerman persuasive and concludes Defendant has not shown a violation of due process (including the right to exculpatory evidence) in not being advised he could obtain an independent test and in being held in custody. See also United States v. Cassidy, No. 15-po-5079-JTJ, 2016 WL 154033, at *3 (D. Mont. Jan. 12, 2016) ("there is no federal constitutional right to an independent blood test"); United States v. Friend, 736 F. Supp. 1134, 1136 (N.D. Ga. 1990) ("the Court is not prepared to elevate the right to an independent blood test recognized in many states to federal constitutional stature"); Angeline v. City of Hoover, No. 2:07-CV-0292-RDP, 2009 WL 10704138, at *33 (N.D. Ala. Mar. 30, 2009), rev'd and remanded on other grounds, 352 F. App'x 332 (11th Cir. 2009) (following Friend). Cf., Lovell v. Thorpe, 849 F. App'x 754, 757 (10th Cir. 2021). In Lovell, the Tenth Circuit held an offender has "no constitutional right to the preservation of blood samples." The court rejected the defendant's argument that the results of his blood alcohol test should have been suppressed because he had no opportunity to obtain an independent test on the sample. Id. at 757.
Defendant cites a district court case adapting Brady to "evidence of uncertain exculpatory value," specifically to post-conviction DNA testing of biological evidence from the defendant's criminal trial. Wade v. Brady, 460 F. Supp. 2d 226, 245 (D. Mass. 2006). "This Due Process right is analogous to Brady, not a literal application of its pre-trial guarantee. . . . [T]he same motivations undergirding Brady, the desire to avoid wrongful convictions by providing access to evidence in the prosecutor's possession, apply in the post-conviction context." Id. at 243. Wade did not require the habeas petitioner to first prove that a DNA test would definitely show he was not guilty in order to obtain the DNA test. But the case is not on point here. In Wade, biological evidence (blood and semen samples) was collected and apparently preserved even post-conviction, but it had never been DNA-tested - before or after his felony murder trial eight years prior. The issue was whether he should be able to do so post-conviction, not whether he should have been advised when arrested that he could obtain independent DNA testing or should have been permitted to do so before trial.
Defendant relies on California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) for support, but it provides none. The Court held that "criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense." Id. at 485, 104 S.Ct. 2528 (internal quotation marks and citation omitted).
Less clear from our access-to-evidence cases is the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government's possession. On a few occasions, we have suggested that the Federal Government might transgress constitutional limitations if it exercised its sovereign powers so as to hamper a criminal defendant's preparation for trial.Id. at 486, 104 S.Ct. 2528 (emphasis added). Trombetta noted three cases "intimated" there may be a due process violation if the government delays the indictment so long that the ability to defend was impaired, or if the government deports potential defense witnesses. Defendant relies on this suggestion to argue that hampering his preparation for trial (by not advising him and preventing him from obtaining an independent alcohol test by keeping him in custody) violates his due process rights.
But Trombetta went on to note Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961), in which the Court held that destruction of an agent's preliminary notes in interviewing witnesses - which were destroyed in good faith and in accord with the agency's normal practices - did not violate the defendant's rights. In the absence of bad faith, the government must only "preserve evidence . . . that might be expected to play a significant role in the suspect's defense." Trombetta, 467 U.S. at 488, 104 S.Ct. 2528. Such evidence "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489, 104 S.Ct. 2528. Trombetta further found there was no duty to preserve the defendant's Intoxilyzer breath samples because the state's procedures for the tests ensured a high level of accuracy. Only in a "tiny fraction of cases" would the samples have exculpatory value. Id.
It appears the rangers in this case used the same procedures as in Trombetta (e.g., two independent tests at the jail whose results were closely correlated). Defendant does not assert bad faith by the rangers. Nor does he point to any reason to believe the breath-alcohol tests taken in the field or at the jail were inaccurate. Thus, he has not shown an independent test would have exculpatory value.
More importantly, Defendant does not cite any cases finding a duty to advise arrestees regarding collection of evidence that is not in the government's possession, to release arrestees so they can collect such evidence, or to otherwise enable arrestees to obtain independent tests. Trombetta did not do so; the Court accepted the state court's conclusion that the breath samples were in the government's possession. 467 U.S. at 488, n.7, 104 S.Ct. 2528. In Kenney v. New Mexico, No. 18-cv-1163-JCH-KRS, 2020 WL 1951595 (D.N.M. Apr. 23, 2020), report and rec. adopted, 2020 WL 4547295 (D.N.M. Aug. 6, 2020), the defendant argued state officers violated his due process rights because they did not obtain a blood alcohol test when he requested one. The court rejected the argument, noting
the United States Supreme Court has not extended any such duty to create and collect evidence as Kenney suggests here. In fact, Trombetta, the primary case Kenney cites, stands for the proposition that the police are under no affirmative duty to take steps to gather potentially exculpatory evidence on behalf of a defendant.Kenney, 2020 WL 1951595, at *4 (emphasis added).
Nor does Defendant cite any authority that the rangers had to release him so he could go to a hospital or clinic and obtain an independent test that he had not requested. Defendant does not argue a lack of probable cause for his DU1 citations, and other than his unsupported due process theory, Defendant does not point to any reason to believe the rangers acted without lawful authority in taking him into custody without bond after arresting him.
Defendant also cites Mattison v. Fizer, No. CV 04-2961-PCT-JAT, 2007 WL 4661166 (D. Ariz. April 12, 2007), report and rec. adopted, 2007 WL 4219153 (D. Ariz. Nov. 28, 2007) and Griego v. Inch, Case No. 3:17-cv-66-LC/CAS, 2019 WL 4018449 (N.D. Fla. July 1, 2019), report and rec. adopted, 2019 WL 4017607 (N.D. Fla. Aug. 26, 2019). In Mattison, the court addressed a claim for ineffective assistance of counsel ("IAC"). The offender argued his counsel was ineffective in failing to argue he was deprived of exculpatory evidence when officers denied his request for an independent blood test. The court denied the IAC claim because the offender had to show prejudice (Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), and there was no evidence that he had actually requested an independent test. This case does not support Defendant's argument.
Griego is another IAC case. The offender argued his counsel was ineffective because he failed to move to suppress evidence on the same basis Defendant argues here. 2019 WL 4018449, at *23-24. The court found the offender did not show prejudice due to the other inculpating evidence against him. Id. Mr. Fieldson appears to believe that the inculpatory evidence against him in this case is weaker than in Griego. But even assuming that is true, the case does not support a due process right to be advised of the right to obtain an independent test. If anything, because Mattison and Griego found no violation of the offenders' constitutional rights to effective representation - despite counsel failing to argue the deprivation of possibly exculpatory evidence - these cases and others like them indirectly support that due process does not guarantee the preservation of evidence that is only possibly exculpatory.
See also Gutierrez v. Moriarty, 977 F.2d 595 (Table), 1992 WL 279794, at *3 (10th Cir. Sep. 30, 1992) (IAC claim failed for lack of evidence to show "an independent laboratory test [of petitioner's blood, urine and vomit for heroin] would have yielded exculpatory results").
C. State Law
Mr. Fieldson next argues that Wyoming Statute § 31-6-102 gave him the right to the advisement that he did not receive. Magistrate Judge Carman rejected this argument in Zimmerman.
The Defendant first asserts that state substantive law [of Montana] applies and cites Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co. 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). This case is not relevant to the issue at hand. Shady Grove concerns a conflict between state law and the federal rules regarding class action[s] pending in federal court pursuant to diversity jurisdiction. While the Defendant's statement is correct regarding federal courts hearing civil matters sitting in diversity, it has no application to federal courts considering criminal charges alleging a violation of federal law. State law does not control the admissibility of evidence in federal criminal cases. U.S. v. Turner, 209 F.3d 1198, 1199 (10th Cir. 2000); U.S. v. Dickerson, 195 F.3d 1183 (10th Cir. 1999); and U.S. v. Le, 173 F.3d 1258 (10th Cir. 1999).116 F. Supp. 3d at 1288. This issue apparently was not appealed to Judge Skavdahl. Mr. Fieldson relies on the same case, Shady Grove, to make the same argument here albeit relying on the law of Wyoming instead of Montana.
Judge Carman's reasoning in Zimmerman is persuasive, and the Court adopts it. See also Cassidy, 2016 WL 154033, at *3 (quoting Friend, "the [federal] regulations . . . make substantive state traffic laws applicable in national parks in the absence of federal regulations," but "state procedures in drunk driving cases do not establish substantive traffic offenses.").
Defendant also cites Illinois v. Batchelder, 463 U.S. 1112, 103 S.Ct. 3513, 77 L.Ed.2d 1267 (1983) and Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979). However, as to Batchelder he argues only that it "determined the implied consent law of Illinois did not violate Due Process rights because the state provided suspects the right to refuse, and consequences of submitting to a test." There is no dispute here that Defendant received the full advisement, and it included those subjects. As to Mackey, Defendant notes the case determined whether a state's law suspension of drivers' licenses for refusing to take a breath test violated due process. But Mr. Fieldson consented to the breath test. Defendant has not articulated how these cases support his argument, and the Court sees none.
D. Fifth Amendment Right Against Self-Incrimination
Finally, although Defendant's brief states that his right against self-incrimination was violated (ECF 43 at 3), he makes no argument to support this theory. Nor does the Court see any obvious way in which this right could have been violated in the denial of his motion to suppress. In Neville, for instance, the Supreme Court held that where the state gave the offender a choice between submitting or refusing to take a blood-alcohol test, refusal is "not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination." 459 U.S. at 564, 103 S.Ct. 916. But here, Mr. Fieldson submitted to the tests that the park rangers requested. He does not explain how the failure to inform of a right to obtain an independent test, or effectively preventing him from doing so by taking him into custody, resulted in Mr. Fieldson testifying against himself due to a coerced act. IV. Conclusion
Accordingly, Magistrate Judge Carman's denial of the motion to suppress and Chief Magistrate Judge Rankin's judgment are AFFIRMED. The stay of Defendant's sentence pending his appeal is VACATED.