the united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this grand on the one hand they can credit a horrific accident that brought with it a slew of urgent safety and investigative needs it was three and a remote area the car was crossed the driver needed to go to the hospital for medical treatment and the officers quickly determined that they were investigating the scene of a potential triple homicide is that this could you clarify please if you're arguing that the judge clearly erred in his fact and its conclusion that there was no agency was iran has as a matter of law we don't agree and we don't disagree with the underlying factual findings but we do disagree with the way the court balance those various facts and its conclusion about the the circumstances here so the critical question and a case like this after mitchell is when blood alcohol evidence is dissipating are there other pressing needs that reasonably could take priority over a  legal question and the district court err care when it concluded that the right not pressing need that the officer was reasonably could prioritize overdrawing that and slide and for that reason the results of that warrant with blood trot should not have been suppressed and there are five critical points that i would like to address to the court today the st is that this was a highly unusual case for the national park service this was a unique set of circumstances and attempted investigation and that the ranger testif he had never confronted and was not aware of the park service ever and that's the gating case like this and i think that's important when considering the overall to tony the circumstances here and of course it was a very serious case the nd critical point is that th needed to go to the hospital for medical treatment and the district courts factual findings were that the officers did not want to divert him from the hospital for a breath test given the e m t that advice that he needed medical assessment and that are all the issues the down for you to have gotten a warrant that's correct your honor but i would suggest that the fact that he had to go to the hospital is one factor on a sort of balance a reasonable one is the look and mention the court there talked about the fact  that the drivers need to go to the hospital in that case because he was unconscious made it difficult or impossible rather for the police to get a breath fast and that was one of the reasons that there was an exigency and that case so it's an end but and party which of the hospital would not give what the record shows is that the state system the officers testified that it would have taken between three and five hours for them to get a warrant so i'd submit under the facts in this case and given the officer resources the state warrant process was simply off the table and there's no flaw  of the night phone call your honor in the kentucky versus king the question is whether government officials had done something and violation of the th and then and that creates the exit jency that's not what happened in this case it was the middle of the night and usa the record s that play didn't pick up the phone but i would also point out that it was the on call say that's that's correct or out of there so nothing on the record to show that there was any sort of deliberate attempt to avoid able to procure a warrant d and timely fashion here given the other exigencies of the situation and if i may just looking at the timeline here i am a federal officer on scene for the st approximately ninety minutes after the car crashes ranger federal officer overseeing us here at that crash investigation and so even at the age of say had picked up at three hundred and fifteen when the call is st made that doesn't mean that the officer could have laughed at that time to procure aware and the record shows exactly the opposite and i would s that it was reasonable given the ad agency of the of the situation and the need to investigate a serious crash that ranger dominate remain on scene as long as he did you know i ask a factual question that's not only give your clear from the record warrant for your own blood drawn when you already have a blood draw being done by the clinical people got the hospital yes your honor my understanding is that it was the hospital but rather as a separate blood draw i believe it below because the district court had asked about this whether it needed t the result the question of suppression of police blood cast is that both parties thought that there need to be a result in part because it's my understanding that the reliability fashion what i can say is that that's not something that's entirely within the u s attorney's office is control that that you know the work process is also something that is partly and that courts control and so i'm not sure that  what i would say though in terms of the warrant process it is and this is my that my point this is a highly unusual circumstance late at night in that overnight reflect at that end and you know if it weren't process works ninety nine times out of out of  was again late at night and there's nothing in the record i mean your argument totality of circumstances but there's a whole lot about the totality they simply was not is that a record made of what happened we don't we don't know why people didn't pick up three people didn't pick up the phone we don't know if there is an inherent problem with the system is set up that we just don't know what we do know and just one more thing and coming from the state court i was awakened in the middle of the that for example there was a case cited and the it at least briefly district in maryland where they have tons of oil iraq and so they have created a system where there's a magistrate on call two hundred and forty seven that's not to say that our judges are not available to us it's just that as i understand after the crash and that's just the reality of the situation we're talking about what about state state state actors there were three of them your honor one of them was engaged with the defendant the entire time which i would submit was reasonable the other two were in which which you've addressed but then the other variable is how much time would have to pass before one could get meaningful results that would allow you to project back an estimate of blood alcohol level at the time of the accident and i found in the record no information about that nd variable which judge what congo also noted so if we don't have to nd variable if we don't know how much time you had within which to get a warrant what difference does it make how much time it would take to get a warrant you know just missing a crucial piece of information fact that he knew the local bars closed around one am and so he was implicit in that is that he's doing a calculation and his mind about how long it has been since the defendant had his lot strength by the time ranger domini arrived on scene and develop probable lab and testing is going to be problematic and the longer you go the less reliable the evidence gets so you know and michel it was ninety minutes and sherbert was two hours i would suggest that those are the periods of time we're talking about and that significant delay beyond that attach to it suppression motion below one of the police reports and what that police report shows is that when the blood test was taken at the door twenty four i believe it was his blood the whole of it was point ninety five  that the results of that blood test your expert would project back from that that's that's correct around although even in mc nearly they talk about the fact that the longer you go the less reliable that projection back gets and so you're losing and mental talk about just how incredibly important and compelling this evidence is in enforcing our laws and particularly here we have a triple manslaughter charge the longer you go the last reliable the evidence gets and it at it's a critical that and and the police are not they're entitled to prioritise other pressing needs and they're not required under mental or make merely to wait for any sort of significant delay that's it make nearly talks about maybe a situation where you could get a warrant before you went to the hospital for the blood test but any quote unquote significant delay is not something that the police are required to abide and i submit that the circumstances in this case they draw blood it's that it's a hospital blood test it's not done for the purpose of preserving evidence for a criminal proceeding i don't know much of the details beyond that except that both parties agree below that  liability of that hospital blood test would be more subject to challenge and the police blood test any additional questions from colleagues ok thank you thank you thank you attorney lin has please meet your audio video at this time attorney mickey please and your audio and video and you may proceed the morning may please the court my name is walter key and i represent men a bolo i think the government argument here really ignores some key factual findings they were made by judge woodcock in that were supported by the record st and foremost was that mr mehta bolos injuries were minor by his assessment and by the factual findings that there were multiple law enforcement officers and e m t on the scene shortly after this accident took place and then of course the warrant process and procedure that was needlessly cumbersome and which involved multiple steps for someone to go through which judge would cop characterized in one form or another as always creating an circumstance because going to simply take too long using their procedure to get the warrant in the st place these key factual findings are important because the government bears the burden of proving the exigent circumstances and then hear that they were pressing help testified was that there will be a call that would be made and then he would physically drive back to his office sit down and type up a warrant and then submit it back to the a u s a who would then get in touch with the magistrate at the time there was no direct route to the magistrate and as the court indicated here in the questions before oftentimes law enforcement officers have the free ability there's nothing in the rule is that they cannot contact the magistrate judge themselves they may not do that here but that's not the problem of the defendant that's the problem of the process but the u attorney's office set up in apparently was the view of the prior magistrate not the magistrate that was actually on duty so to speak that night and so in that circumstance if you actually followed all those steps you would have been at least two or three hours but remember too it that would suggest to the court that the rd a usa at that point might have taken some steps if they decided to do so instead of saying i'm going to wait to see if the original on call eighty a usa thinks it's important not to call back in essence that point they could have gone ahead and done whatever they were going to do as slow as it may have been but back to mr mehta bowler's injuries if i may these were minor he had a goose bump under rezai and yet cuts and scratches and that was consistent with somebody i'm involved in an accident if mr mckee if i might by our permitting tree osh by their law enforcement officers of the various things that they have to do and they have to make judgments about whether or not they do one thing before they do another thing then really what's involved here is can they get a blood draw in a reasonable amount of time or are they making it so difficult for themselves that they won't be able to get a reasonable drug ledra in recent months time they got one concern about head trauma and so he's balancing all of these factors makes a judgment and we have an incentive structure to get this done in a timely enough fashion so that they're able to get a why should we be nd guessing under those circumstances in this fashion well the back to a fight it's here we're actually at the injuries were minor there was a suggestion on the record there could be a head trauma or whatever but judge what did not see it that way remember  in the evidence was somebody who when they arrived at the scene was walking talking and communicating but do you good didn t t say this fellow has to go to the hospital or should go to the hospital for an assessment this is not a situation where there isn't a treatment like we need to treat this person right off the bat he's going one way or the other we need to have an assessment done and remember he they sent him over to the hospital for that assessment they could have gone down to the barber police department which was we know from the record merely minutes away f me an agent a skilled agent made look at that say i don't want to want to lecture on this since only balances all of these factors now back to that larger question of what findings were made by judge woodcock on these issues he didn't find one way or the other giddy about to whether or not there was need to go to the hospital so he didn't what he found was that the injuries were minor and he described it needs scribed in a way that would be consistent with any accident point is that there are a lot of unknowns and so we're leaving it to be agent to treat and that's what i'm trying to get to this larger question because i asked just one other question i'm sorry to interrupt you but that goes to the at seven o'clock idea lapels tells us that both of you agree that the blood draw the body the hospital for its own clinical purposes is different from the blood draw that was done at the direction of the ag two are the blood dress blood draws that are done by nurses who are conducting that kind of drop pursuant to maine standards i have to follow in the analysis is done and a whole separate process for forensic toxicology and those t hands that someone of that we can find in the record that tells us the difference because it strikes me that she probably thinks she's doing the same thing when she draws blood there are two separate processes and we don't have anything in the record the reason this became an issue was because  government indicated look regardless of whether we're going to use the hospital example we are going to seek to admit this simple and when the government said they were going to do that we had a little get the issue they were going to say well we'll just skip this issue we don't need to deal with  says i'm not going to permit the use of the blood drawn from the hospital it's or says i am going to commit that blood drawn from hospital using the government's expert but  essence in iraq the court's observation this was a triple fatality but when it comes to the o u i accident we have the vehicle in the woods we have mr mina below there the the other occupants in the vehicle are deceased there's no other witnesses to be interviewed at  at the time the scene is actually blocked off we have three bar harbor police department officers there and a southwest harbor police officer who's blocking off the scene of above the park road there's not this scene is not going anywhere there's no rain or storm is coming in is going to watch anything away ranger domany could very or any other officer fully stepped away from the entire process let it doesn't want to get the search warrant and then come back and deal with it it wasn't going to go anywhere at the time not to mention there are three e m t is on the scene as well so this was a taken in order to be meaningful we can rely on the district court should have relied on these are common knowledge with the supreme court has said in mitchell and other cases in observing the actual different factors none of that is in the record these officers are trained in o u i detection investigation they could have testified about that any one of them could have but they did there is no record evidence on that and that's important here because we need to know that number now what the failure of the u s attorney's office i just didn't appreciate it it's not comfortable to talk about that people didn't pick up the phone but i think that we can almost take that part out of it because as the court indicated officers can make a phone call to a magistrate judge him simply because the process  up where the a u s a has to approve everything is the gatekeeper shouldn't change that at all that phone call be made let me take you back to the dissipation point assume we have circumstances here where an officer has a triple fatality car accident that's pretty serious obviously zero degree and he knows that the driver had been drinking some but he doesn't know exactly when the driver stopped drinking circumstances for the officer to say rather than taking a risk that i'll get no meaningful results i'm going to try it now rather than waiting three hours to get a warrant i think that would call into question whether in any situation whether a war process is even going to be available or appropriate it could be fifteen minutes and the officer could say well all of these situations and hour to hour or three hours we're going to have dissipated and include what the cases said told us is that it's not appropriate dissipation alone these other factors here are important key factors just in mentioning the government and how they address the issue with respect to the warrant it was it was it was difficult to understand what the issue was at all ranger domini may not have decided not to do that we don't really do that here that's not the process that's not the policy we heard time and again in the testimony and simply because they don't bill themselves the process doesn't all sudden create well there must be exigent circumstances because we just don't really know how to do it that way  and so last year you know i would indicate that the officers were certainly operating i think under the the idea that they had the ability to use the maine statute which says you can compel you know these  has not been challenged by the government was unconstitutional so that's all i have thank you very much appreciate i'm happy to answer any further questions with the minimal amount of time i might have available it is still questions thank you  he should go to the hospital because of the advice of the e m t is and i would submit that it would be on reasonable to suggest that the officer should have st a bridge to the police department for a breath test given that catastrophic nature of this accident his three passengers were dead the officer testified that he had indications of head trauma he appeared to be in shock or had trouble in the short term memory the e m t he wanted him to be evaluated for internal injuries under those circumstances the question is always raised long as it was reasonable for the officers to have to go to the hospital st and not be diverted for a breath test and that is a critical factor and we're looking at exit and circumstances under the mitchell case the nd point i would like to discuss is the nature of the warrant process there's a state process there's a federal process but and i would submit that this again goes back to my point that the right process works the vast majority of the time but it is too slow in a case like this that doesn't mean that you set up a process that's deficient under the th amendment thing that was big was the defended remote area and the sense here are that for example the state justice of the peace look forty five minutes away and you have limited officer resources this didn't happen in the middle of portland where you might have ten federal agents who could quickly respond to this name and you could send one off you get a warrant so when you're looking at the totality think we need to look at the location that every every federal agency law enforcement agency has cooperation agreements with state actors and they were on the scene that's correct out of the state officers under the federal rules can't go swear out a federal warrant so i think in terms of looking at the war process we have to separate them out we have one federal officer on scene he's the only one who was forty five minutes away they didn't have the ability to printout at the dates they were under the process as they understand it required to use written affidavits and i would i would just like to go back to the make nearly decision because what the court said there is that even with standard thank you but that concludes argument in this case attorney look peasant attorney mickey you should disconnect from the hearing test this time